AMOS v NEW ZEALAND POLICE [2023] NZHC 1148

AMOS v NEW ZEALAND POLICE [2023] NZHC 1148 [12 May 2023]IN THE HIGH COURT OF NEW ZEALANDWELLINGTON REGISTRYI TE KŌTI MATUA O AOTEAROATE WHANGANUI-A-TARA ROHECRI-2023-485-13CRI-2023-485-14[2023] NZHC 1148BETWEEN ANTHONY MARK AMOSAppellantAND NEW ZEALAND POLICERespondentHearing: 9 May 2023Counsel: M W Anderson and K J Paterson for AppellantS Deng for RespondentJudgment: 12 May 2023JUDGMENT OF RADICH JIntroduction[1] On 29 October 1993, Mr Amos pleaded guilty to and was convicted of onecharge of cultivating cannabis.1 He was sentenced to a term of four months'imprisonment on 22 November 1993 in the Lower Hutt District Court. On 22 August2002, Mr Amos was found guilty of and convicted on a charge of possessing cannabisfor supply.2 He was sentenced to a term of four months' imprisonment on18 September 2002 in the Wellington District Court. Both sentences have been served.[2] On 11 December 2014 the Migration Amendment (Character and General VisaCancellation) Act 2014 was enacted in Australia. It restricted the ability of foreignnationals with criminal convictions to enter Australia without first seeking permission1 Misuse of Drugs Act 1975, s 9 (maximum penalty 7 years' imprisonment).2 Section 6 (maximum penalty 8 years' imprisonment).from immigration authorities. Mr Amos was returned to New Zealand from the borderat Melbourne Airport in 2016 because, as a result of the 2014 Act, he was deemed tobe a "behaviour concern non-citizen", having been convicted of two or more crimesresulting in sentences of imprisonment for periods totalling at least one year.3[3] Mr Amos now seeks leave to appeal out of time from his 1993 and 2002sentences, which have a combined length of 13 months' imprisonment. In addition,he seeks leave to adduce further evidence through an affidavit dated 26 April 2023.The Crown opposes the application for leave to appeal and, if leave is granted, itopposes the appeal. But it does not oppose the application to admit Mr Amos' affidavitevidence.BackgroundOffending[4] The Court file for Mr Amos' 1993 cultivation charge has now been destroyed.There is only one document available to the Court which relates to that offending – acharging document of 22 May 1993. It records that Mr Amos was charged withcultivating cannabis on 22 October 1993. Mr Anderson has submitted that, becausethere was no adjacent charge for cannabis supply, it is reasonable to assume the amountof cannabis involved was below the presumption for supply. However, it is just notknown how much cannabis was involved.[5] The charging document records that Mr Amos was refused bail on (as appearsto be the case from the handwritten annotations on the charging document) 29 October1993, but at a point in November 1993, bail was granted. An arrest for breach of bailconditions is recorded on the document in November 1993 but the notation on thedocument indicates "BTC" or 'bail to continue'.[6] The Court file for the 2002 charge of possessing cannabis for supply has beendestroyed (or is otherwise unable to be located) as well. However, for the 2002offending, the sentencing notes of the District Court Judge are available. From the3 Australian Government Department of Home Affairs "Special Category Visa (SCV)"https://immi.homeaffairs.gov.au.sentencing notes it is known that Mr Amos was found with 840 grams of cannabis leafto a value, estimated by the Judge, of approximately $1,000. In the Judge's view, thequantity and quality of the cannabis was such that (given the likelihood of itdeteriorating if not sold and if used by just one person) the prospect that it was for salewas clear.Personal background[7] Mr Amos is 63 years old. He was aged 34 at the time of the 1993 offendingand 43 at the time of the 2002 offending.[8] He has a total of 24 convictions, entered between 1973 and 2023. They includeconvictions for drug-related, dishonesty and driving offending. He has threeconvictions for unlawful possession of a weapon or ammunition and two convictionsfor common assault. For this offending Mr Amos has received as sentences, variously,fines, disqualifications from driving, supervision, community work and the two shortterms of imprisonment that are in issue in these proceedings.[9] Before the 1993 conviction, Mr Amos had another conviction for cultivatingcannabis in 1992 (for which he was sentenced to a fine of $350) and a conviction forprocuring or possessing cannabis seed in 1982 (for which he was sentenced to a fineof $100).[10] Mr Amos has filed an affidavit in this appeal which, for reasons given below,I am prepared to admit. It explains, in the first instance, the reasons for the appeal.Mr Amos has referred to having family in Australia and to having visited them anumber of times in the past. On his most recent visit in 2016, he was returned to NewZealand upon arrival in Melbourne. He has brought the appeal only now because, ashe puts it, he did not realise that it is possible to do so until speaking with his lawyerabout another matter recently. Mr Amos' evidence goes on to describe his offending.He cannot remember the amount of cannabis to which the 1993 conviction related. Herecalls it as being for personal use and of a quantity that was similar to his 1992offending. He recalled others in prison being surprised that he had not received a fineor a community sentence.[11] Mr Amos, in referring to his 2002 conviction and sentence, has indicated thathe "mostly" served home detention instead of imprisonment, spending a couple ofmonths in prison and serving the remainder of his sentence at home. Records are notavailable so this is the only information that is available on the point.Sentencing notes for the 2002 offending[12] As mentioned already, the District Court Judge found that the 840 grams ofcannabis involved was intended for sale, noting that the circumstances demonstratedthat Mr Amos "would probably make tinnies in small quantities and sell them on acasual basis for profit".4 The Judge commented that the level of prospective dealingwas consistent with the jury's verdict.5[13] The Judge referred to R v Terewi,6 R v Edbrooke and R v Harris for guidancein setting the starting point for the offending.7 Terewi, the tariff case at the time, setthe lowest level of sentencing for commercial cultivation of cannabis at between twoto four years. The Judge concluded that this offending could be distinguished fromEdbrooke because, in that case, the appellant sold "a few tinnies to friends" which wasnot considered to have been a commercial purpose.8 The Judge referred to Harris toillustrate a modest level of dealing where a short sentence of imprisonment wasconsidered appropriate, notwithstanding the categories set out in Terewi forcultivation.9[14] The starting point was expressed as being "in the region of about 12 monthsimprisonment". Considering the deterrent principle of sentencing and personalfactors, particularly that Mr Amos was open to counselling and had said that he hadstopped using cannabis, the Judge imposed an end sentence of nine months'imprisonment (meaning the discount for personal factors was 25 per cent). Leave wasgranted to apply for home detention.104 R v Amos DC Wellington T013229, 18 September 2002 at [3].5 At [3].6 R v Terewi [1999] 3 NZLR 62 (CA).7 R v Edbrooke [2000] 3 NZLR 360 (CA); and R v Harris CA283/99, 27 September 1999.8 R v Amos, above n 4, at [5].9 At [5].10 At [9].Legal principlesApproach to appeal and procedure[15] Under s 397 of the Criminal Procedure Act 2011, any appeal in a proceedingcommenced before 1 July 2013 must be dealt with under the law in force at the time.11At the times at which Mr Amos was convicted and sentenced in 1993 and 2002, theSummary Proceedings Act 1957 governed the appeal process.[16] The appellant was required to file his notice of appeal within 28 days after hissentence and, therefore, it is well out of time.12 The court could, under s 123 of the1957 Act, extend the time for appeal. The touchstone for granting an application toextend time for an appeal was the interests of justice in the particular case.13 Morerecent authorities have acknowledged that extensions of time applications will oftenreduce to the reasons for the delay and the merits of the proposed appeal.14 Otherrelevant criteria include the strength of the proposed appeal; the practical utility of theremedy sought; the length of and reasons for delay; floodgates considerations; and theabsence of prejudice to the Crown.15[17] If leave to appeal out of time is granted, the appeal is to proceed by way ofrehearing.16 The court had full discretionary powers to hear and receive furtherevidence, if that further evidence could not in the circumstances reasonably have beenadduced at the hearing.17 In the case of an appeal against sentence, the court mayconfirm the sentence or:18(b) If the sentence (either in whole or in part) is one which the Courtimposing it had no jurisdiction to impose, or is one which is clearlyexcessive or inadequate or inappropriate, or if the High Court is11 The Crown, fairly, referred to R v KJB [2007] NZCA 292 at [23], which dealt with the situation inwhich a Court is sentencing for offending which took place some decades earlier. The Court wasmaking the point there that starting points and maximum penalties must be taken from the time ofthe offending but that the Court could then apply current methodologies for sentencing. However,in this case Mr Amos was sentenced in the same era as that in which the offending took place andso it would be wrong to use principles that did not apply at the time.12 Summary Proceedings Act, s 116.13 R v Knight [1988] 1 NZLR 583, (1997) 15 CRNZ 332 (CA).14 Mikus v R [2011] NZCA 298 at [26], citing R v Slavich [2008] NZCA 116 at [14].15 R v Knight, above n 13, at 589, 338.16 Summary Proceedings Act, s 119(1).17 Section 119(3).18 Section 121(3).satisfied that substantial facts relating to the offence or to theoffender's character or personal history were not before the Courtimposing the sentence, or that those facts were not substantially asplaced before or found by that Court, either—(i) Quash the sentence and either pass such other sentencewarranted in law (whether more or less severe) in substitutiontherefor as the High Court thinks ought to have been passedor deal with the offender in any other way that the Courtimposing sentence could have dealt with him on theconviction; or(ii) Quash any invalid part of the sentence that is severable fromthe residue; or(iii) Vary, within the limits warranted in law, the sentence or anypart of it or any condition imposed in it.[18] The approach to be taken to appeals under s 121(3) was explained in Yorsten vPolice where the Court said:19(a) There must be an error vitiating the lower Court's original sentencingdiscretion.(b) The appeal must proceed on an 'error principle'.(c) To establish an error in sentencing it must be shown that the Judge inthe lower Court made an error whether intrinsically or as a result ofadditional material submitted to the appeal Court.(d) It is only if an error of that character is involved that the appeal Courtshould re-exercise the sentencing discretion.[19] The appeal court will not intervene where the sentence is within a range thatcan properly be justified by accepted sentencing principles, with the exception of thosecases recognised by the Court of Appeal in Tutakangahau v R in which something hasgone wrong to such an extent as to require a correction, albeit that the sentenceimposed is within range.2019 Yorston v Police HC Auckland CRI 2010-404-164, 14 September 2010 at [13]–[15].20 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].Sentencing options at the time of the historic sentences[20] At the time of Mr Amos' 1993 conviction, several community-based sentenceswere available to the sentencing Judge. They did not include home detention.Section 29 of the Criminal Justice Act 1985 provided for a sentence of communityservice where an offender was convicted for an offence punishable by imprisonment.The Court could order a sentence of this type if it was satisfied:21(a) That the sentence is appropriate having regard to the offender'scharacter and personal history, and to any other relevantcircumstances:(b) That the offender understands the purpose and effect of the sentenceand consents to its imposition:(c) That suitable authorised service is available for the offender toperform for the purposes of the sentence.[21] Pursuant to s 37 of the 1985 Act, an offender who was 15 years of age or moreand who was convicted of an offence punishable by imprisonment could be sentencedto a term of periodic detention not exceeding 12 months.[22] The Sentencing Act 2002 came into force on 20 June 2002.22 At the time ofMr Amos' 2002 conviction, home detention was not a stand-alone sentencing optionbut a form of early release from a penal institution.23 Home detention was defined as"detention under a sentence of imprisonment, in a residence of an offender who ison home detention under a direction made under section 35 of the Parole Act 2002".24[23] Section 97 of the Sentencing Act required a sentencing Judge to considergranting an offender leave to apply for home detention to the New Zealand ParoleBoard in certain cases including in cases in which the offender was sentenced to a termof imprisonment of not more than two years.25 The Parole Board had a discretion to21 Criminal Justice Act 1985, s 31.22 Sentencing Act Commencement Order 2002 (2002/176).23 Sentencing Act 2002 (as enacted), s 6(3).24 Parole Act 2002 (as enacted), s 4 (definition of "home detention").25 Sentencing Act (as enacted), s 97(1)(a).direct an offender, who had applied for home detention, to continue serving his or hersentence on home detention if satisfied of certain grounds.26Leave to file further evidence[24] The general principle for the admission of fresh evidence on appeal is that itmust be fresh, credible and cogent.27 As the Privy Council said in Lundy v R:28The Board considers that the proper basis on which admission of freshevidence should be decided is by the application of a sequential series of tests.If the evidence is not credible, it should not be admitted. If it is credible, thequestion then arises whether it is fresh in the sense that it is evidence whichcould not have been obtained for the trial with reasonable diligence. If theevidence is both credible and fresh, it should generally be admitted unless theCourt is satisfied at that stage that, if admitted, it would have no effect on thesafety of the conviction. If the evidence is credible but not fresh, the Courtshould assess its strength and its potential impact on the safety of theconviction. If it considers that there is a risk of a miscarriage of justice if theevidence is excluded, it should be admitted, notwithstanding that the evidenceis not fresh.[25] In applying these principles to sentence appeals, the Court of Appeal inMark v R has put it in these terms:29(a) If the evidence is both fresh and credible it should be admitted unlessthe appeal court is satisfied that it would have no effect on the sentence.(b) If the evidence is credible but not fresh, the appeal court should assessits strength and its potential impact on the sentence. If the appeal courtconsiders that the sentence would be manifestly excessive if theevidence is excluded, then it should be admitted notwithstanding that itis not fresh.26 Parole Act (as enacted), s 35.27 See Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34]. The same principles that apply to thereceipt of fresh evidence for a conviction appeal apply to a sentence appeal.28 Lundy v R [2013] UKPC 28 at [119].29 Mark v R [2019] NZCA 121 at [16].Assessment[26] While Mr Amos challenges, on a principled basis, the sentence imposed in both1993 and 2002 as being excessive, his written submissions conclude with a requestthat "the Court weigh up the interests of justice in this case and substitute one or bothof Mr Amos' sentences to a length that combined they are less than 12 months'imprisonment". Essentially, Mr Amos is asking the Court to vary his historicalsentences to avoid subsequent international immigration consequences.Fresh evidence[27] The evidence contained in Mr Amos' affidavit could not reasonably have beenadduced at an earlier time. The Crown accepts this to be the case. And it accepts thatthe evidence is credible. It does not oppose its admission on that basis. I grant leavefor those reasons.Leave to appeal and substantive appeals(a) Reason for delay[28] Mr Amos has explained that he did not bring the appeals at an earlier timebecause the consequences of his convictions only became apparent in 2016. That wasseven years ago. Mr Amos has explained that it was only when he received advicerecently on another matter that he became aware of the prospect of appeals from hisearlier convictions as a means of dealing with the issues he faces at the Australianborder. The Crown says in response that Mr Amos should, reasonably, have knowneven before 2016 that a conviction could have an impact upon future travel.30 And theCrown says that the delay since 2016, combined with the prejudice it entails, isdisqualifying.[29] I do not regard the reasons offered for the significant delays as beingparticularly strong. The delay is so significant that I need to proceed on the basis thatI will only entertain an appeal if, as a result of the considerations in the case, it can be30 Relying on the discussion of this point by the Court of Appeal in McNeil v Police [2018] NZHC1685 at [22]–[23].said that exceptional circumstances exist.31 Put another way, the proposed appealwould need to be overwhelming on the merits.32 As the Court of Appeal has put it inBriggs v R:33The onus is on the appellant to provide sufficient information to satisfy theCourt that granting leave is in the interests of justice Significantly, theCourt will only entertain an appeal that is many years out of time inexceptional circumstances. A long delay can be a major factor weighingagainst leave, and, where unexplained, can be decisive.(b) Merits of the leave application and of the substantive appeals[30] I will deal with the issues on the leave to appeal application and on thesubstantive appeals together. I look first at the 1993 sentence. As there is no recordof the proceedings, it is appropriate to undertake the assessment on a de novo basis.34The issue boils down to whether Mr Amos should have a non-custodial sentence forthis offending.[31] It is Mr Amos' submission that his sentence of four months' imprisonment isout of step with R v Dutch, which was the tariff case for this type of offending at thetime.35 The respondent in that case pleaded guilty to a charge of cultivation ofcannabis and was sentenced to 18 months' imprisonment. The Crown appealed thesentence on the basis that it was manifestly inadequate. Mr Dutch had cultivated alarge plot of cannabis on Takaka Hill in Nelson which was irrigated with a 3,000 litrewater tank. The estimated profit from the plantation was about $20,000. The Courtof Appeal set three broad tiers for cultivation sentences based on New Zealand andUK authorities:36(1) At the lowest level of culpability are cases where the offender hascultivated a few plants on his own property exclusively for his ownuse. Sentences for cultivation to that extent have not been consideredby this Court, as obviously they will normally be dealt with by a fineor some other form of non-custodial penalty in the District Courts.31 Butcher v R [2015] NZCA 102 at [7].32 R v Latifi [2017] NZCA 372 at [4], cited in R v Slavich, above n 14, at [14].33 Briggs v R [2020] NZCA 453 at [15].34 While, as the Crown says, the absence of a file precludes the ability of the rehearing that isrequired, in McNeil v Police, above n 30, the point was made that, in the absence of record ofproceedings, the sentence would need to be considered de novo in practical terms.35 R v Dutch [1981] 1 NZLR 304 (CA).36 R v Dutch, above n 35, at 308 (emphasis added).But there will be offences of a more serious kind in relation to non-commercial cultivation where terms of imprisonment or heavy fineswill be appropriate. (2) The second class of offending involves cultivation for commercialpurposes where there will be a large number of plants, running intoscores or hundreds, very often growing in a small prepared plot ofground in a remote region, and accompanied by the object of derivinga substantial profit from harvesting and sale. (3) The third and most serious class of offence of cultivating cannabis isrepresented by cases where the cultivation is on a very large scalenormally involving 1000 plants or more. This measure of cultivationis sometimes effected by converting a large building into a hot-houseequipped with sophisticated cultivation aids of the type used inMcNab's case, and where such installations may appear to discloseeither intent or ability to use the established system of cultivation asa continuing operation. But cultivation on a similarly large scale mayalso be achieved by outdoor plantations in remote areas, as in the caseof Rose and Finlayson, and we see no difference in the methodsemployed where the expected harvest is estimated to realise financialreturns of $50,000, $100,000 or more.[32] The offending in Dutch fell within category two, attracting a starting pointbetween two and four years' imprisonment as the offender was shown to be theinitiator of or a principal party to the venture. The Court concluded that the sentencewas manifestly inadequate and replaced it with a sentence of three years'imprisonment.[33] I am unable to accept the appellant's submission that, because Mr Amos wasnot charged also with the supply of cannabis, the level of cannabis involved then wasbelow the presumption for supply. I do not know how much cannabis was involvedor what the circumstances were. Having said that, I think it is fair to say that, havingregard to the Dutch guidelines, the sentence that was imposed for this offending wouldmost likely fall within category 1. It is most unlikely that a sentence of four monthscould be reached from a starting point of between two and four years' imprisonment.That would have required a discount in the range of at least 83 per cent.[34] As is set out above, offending within category 1 of Dutch would normally bedealt with by a fine or a non-custodial penalty, but the case made the point that offencesof a more serious kind – even relating to non-commercial cultivation – could result ina term of imprisonment.[35] Mr Amos' personal circumstances at the time of the offending and newevidence about the consequences of his offending are relevant here. He was 34 at thetime of the offending and had previous convictions for cannabis offending, the mostsignificant of which was a previous conviction for cultivating cannabis in 1992 forwhich he was sentenced to a fine of $350.[36] I am not satisfied that there is sufficient merit in the appeal against this sentenceto amount – in terms of the principles described in [29] above – to exceptionalcircumstances or to an appeal that is overwhelming on the merits. There is insufficientevidence to enable a safe conclusion on whether a custodial or a non-custodialsentence was appropriate in these circumstances. Mr Amos' 1992 conviction forcultivating cannabis likely was an aggravating factor that made a short term ofimprisonment a sentencing option.[37] On the 2002 sentencing, the appellant says that the District Court Judge erredby taking an imprecise and excessive starting point of 12 months' imprisonment. Hesays, also, that it is open to this Court on appeal to record the 2002 sentence as beingin part a sentence of home detention to reflect the way in which the sentence wasserved.[38] At this time, there was no tariff case for possession with intent to supply.Terewi,37 which revisited the categories in Dutch, was adopted by the sentencing Judgeon the basis that it "sets the lowest level of sentencing for commercial cultivation ofcannabis as from two to four years".38 In Terewi the Court of Appeal held that categoryone offending consisted of "growing a small number of cannabis plants for personaluse by the offender without any sale to another party occurring or being intended" andcould be dealt with by a fine or non-custodial sentence and a short term ofimprisonment in serious cases.39 Starting points for that category of cases were heldto be between two and four years' imprisonment.37 R v Terewi, above n 6.38 The Court of Appeal in R v Grey [2008] NZCA 224 has also confirmed the applicability of Terewito possession of cannabis for sale.39 R v Terewi, above n 6, at [4].[39] I do not consider that the Judge erred in setting the starting point for thisoffending. The Judge adopted a starting point of "about 12 months", which is wellunder the two to four year period just mentioned. In doing so, the Judge recognisedthe low level of prospective dealing (a commercial purpose with a small level ofprofit40), sentencing principles and Mr Amos' previous convictions.[40] Most of the authorities referred to by counsel for both parties have startingpoints in the range of 12 to 18 months for similar offending.41 It is relevant to look atthe starting points here because of the significant differences in the personalcircumstances of each case. Moreover, I do not accept that the Judge erred by adoptingan imprecise starting point. The Judge intended to, and did, adopt a starting point of12 months. As with the 1992 sentence, I do not consider the merits of the appeal areso overwhelming as to warrant an extension of time.(c) Prejudice to the Crown[41] I agree that there is only very limited prejudice to the Crown in relation to the2002 sentence. The charge sheet, the conviction history of Mr Amos and thesentencing notes – all of which are available – enable a sufficient analysis to beundertaken on appeal.[42] However, there is a significant barrier to extending the time for the 1993appeal. The prejudice to the Crown is significant. The delay and the lack of materialcauses the Crown particular difficulty in assessing the merits of the appeal42 There is,40 R v Amos, above n 4, at [5].41 In R v Taikato HC Rotorua T023806, 18 March 2003, the appellant was charged with possessing30 g of cannabis worth $200. A starting point of 15 to 18 months was adopted. In Murphy vPolice HC Invercargill AP30/99, 12 October 1999, the appellant was charged with possessing820g of cannabis worth $7,200 and a starting point of 12 months was adopted. In Higgins v PoliceHC Tauranga AP29/02, 1 October 2002, the amount of cannabis the appellant was charged withpossessing was small and a starting point of 12 months' was adopted. Counsel also referred toKoko v Police HC Hamilton AP103/96, 16 December 1996, and The Solicitor-General v CameronHC Timaru AP/98, 5 March 1999. As these cases referred to the end sentence rather than thestarting point, they were not very helpful.42 In Dijilali v R [2017] NZCA 515, there was insurmountable prejudice to the Crown from a 21-year delay as the Police interview with the defendant had been destroyed and a key witness (trialcounsel) had passed away. Similar prejudice was found in Brown v Police [2018] NZHC 1083,where there was a 20-year delay and the court file could not be located.for example, limited evidence upon which to consider whether a sentence of homedetention could have been appropriate.43[43] Mr Amos has placed some reliance on McNeil v Police,44 in which the Courthad varied historic sentences in the face of outcomes that were unforeseen at the timethe sentences were imposed. However, the charges and convictions here are not asstraightforward as the appeal, in that case, against a charge of possessing "one tinny".(d) Interests of justice[44] It is Mr Amos' submission that it is in the interests of justice to allow the appealgiven the consequences of his convictions and sentences. He says, fairly, that the "goalposts have shifted" in terms of his ability to travel to Australia and he says that attitudestowards this type of offending have changed to the effect that, if sentenced today, hewould be very unlikely to receive sentences of imprisonment. His sentences have, itis said, been served and he is "simply asking for some time to be shaved off".[45] Mr Amos has, as mentioned above, relied on McNeil in saying that the HighCourt has previously varied historic sentences to avoid outcomes with unforeseencircumstances. However, in deciding whether to grant leave to appeal in that case, thereason for the delay—that the immigration consequences had only recently come tolight—was not considered to be "particularly strong".45 Leave was granted as themerits of the appeal and lack of prejudice to the respondent meant it was in the interestsof justice to grant the extension.46 The position on the merits and on prejudice differshere.[46] A parallel issue arises. Would it be appropriate for the Court to intervene in acase like this for the purpose of addressing immigration consequences in Australia?How does this process interact with appeal procedures that are available as a part of43 Pursuant to s 31(a) of the Criminal Justice Act 1985 (No 120), no court shall impose a sentence ofcommunity service on an offender unless it is satisfied "that the sentence is appropriate havingregard to the offender's character and personal history, and to any other relevant circumstances".44 McNeil v Police, above n 30, at [2]–[29].45 At [23].46 At [34].the immigration process in Australia? The Crown says that it cannot be right to amenda sentence on appeal to take account of the change in another country's laws.[47] Consequences of deportation have been considered in appeals over sentencingdecisions that did not discharge appellants without conviction.47 Relevantconsiderations were expressed in these terms in Zhang v Ministry of EconomicDevelopment:48 it is appropriate for the consequences of conviction to be resolved by theappropriate authorities, rather than the Court attempting to pre-empt thatdecision-making process by a decision to discharge without conviction []There is nothing that requires the courts to intervene to try and impose theirperception of what the right immigration consequences should be. That is bestleft to the immigration authorities And there will always be occasionswhere in a finely balanced case a discharge [without conviction] may bewarranted on these types of grounds. The case for discharge may not be sostrong where the details of the offending will be known and closely examinedby the relevant authority in any event, than where the query will be only as toprior convictions, for instance in an application for professional certification.[48] Discharges without conviction have been granted in circumstances where theimmigration consequences were serious – for example, where the deportation of theappellant would break up the family unit.49[49] The cancellation power in issue here was added to the migration regime by theMigration Amendment (Character and General Visa Cancellation) Act 2014. Unders 501(3A) of the Migration Act 1958 (Cth), the Minister must cancel a person's visawithout notice if the person has a "substantial criminal record" on the basis of havingbeen sentenced to death, life imprisonment or a single term of imprisonment of12 months or more".[50] The 1958 Act prescribes an appeal process following a decision unders 501(3A). The Minister is to give notice to the affected person and is to invite the47 See Nanda v New Zealand Police [2023] NZHC 415 at [15]; Singh v R [2020] NZCA 411 at [14];and Rahim v R [2018] NZCA 182 at [29] and [31].48 Zhang v Ministry of Economic Development HC Auckland CRI-2010-404-452, 17 March 2011 at[14]. Affirmed by the Court of Appeal in Ho v R [2016] NZCA 229.49 Rahim v R, above n 47; and R v Tang [2019] NZHC 2056.person to make representations about the decision.50 The matter can then be appealed,further, to the Administrative Appeals Tribunal.51[51] It has been said for Mr Amos in submissions that, subsequent to being deniedentry at the border in 2016, his application for a special visa was declined due to hissentences of imprisonment. A further application to review the decision was not made.[52] The fact that the statutory scheme which caused Mr Amos to be turned awayat the border, and then which declined his application for a special visa, included anappeal process is relevant here. It differentiates it from an immigration scheme inwhich the mere fact of conviction would bar entry on an ongoing basis. There was theability here for Mr Amos to have the circumstances of his offending considered byboth the Minister and an appeal tribunal. The availability of this alternative pathwayweighs against allowing an extension of time.[53] Principles relating to the finality of decisions are relevant here also. On theone hand, it can be said the finality of decisions of the courts would be undermined ifpeople convicted over 20 years ago were allowed to appeal to have their sentencesreduced. On the other hand, it would be contrary to the interests of the justice if aperson could not appeal a sentence that was manifestly excessive, even although it hadbeen served.[54] I do accept that societal attitudes have changed and that, if Mr Amos wassentenced for the offending in question today, he would be likely to receive non-custodial sentences. However, for the reasons expressed, I am only able to considerthe offending against the legal provisions and principles applied at the time of theoffending.[55] Having regard to the merits of the appeal, the reasons for the delay, theprejudice to the Crown and the need for exceptional circumstances to exist, it is not inmy view appropriate to grant leave to appeal the case.50 Migration Act 1958 (Cth), s 501CA(3)(a) and (b).51 Section 500(1)(ba). If the Minister made the decision personally, it cannot be further appealed.[56] It is recognised that the result will be disappointing to Mr Amos. However, themethodical application of the relevant principles leads me inexorably to theseconclusions.Result[57] Leave to appeal is declined and the appeal against sentence is dismissed._________________________Radich JSolicitors:Paterson Anderson, Lower Hutt for AppellantCrown Solicitor, Wellington for Respondent