ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 3207

ANNALINGAM v NEW ZEALAND POLICE [2017] NZHC 3207 [19 December 2017]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI 2017-404-296[2017] NZHC 3207BETWEEN SRI RAJ ANNALINGAMAppellantAND NEW ZEALAND POLICERespondentHearing: 13 November 2017Counsel: J Wiles & H Rogers for AppellantM Mortimer for RespondentJudgment: 19 December 2017JUDGMENT OF DUFFY JThis judgment was delivered by me on 19 December 2017 at 10.30 am pursuant toRule 11.5 of the High Court Rules.Registrar/ Deputy RegistrarSolicitors/Counsel:Meredith Connell, AucklandJ H Wiles, Barrister, Auckland[1] On 13 November 2017 I delivered an interim decision on Mr Annalingam'ssentence appeal.1 I found the sentence of 25 months' imprisonment imposed in theDistrict Court was not manifestly excessive and was well within the range of sentencesthat his conduct would generate. I also found that ordinarily that would have beenenough to dispose of the appeal.[2] At the time I adjourned the appeal I expressly stated:2Insofar as the appeal was brought on the ground the sentence was manifestlyexcessive, I can indicate now that this ground is unsuccessful, and would notresult in the appeal being allowed.[3] However, Mr Annalingam's counsel, Mr Wiles, drew to my attention recentcommunications from the Auckland District Health Board which showed thatMr Annalingam's wife's health had deteriorated since his sentence, and this wasallegedly having a serious impact on her ability to attend to the children. Mr Wilesargued that the change for the worse in the wife's ill health was a factor I could takeinto account in considering whether or not to allow the appeal and reduce the sentence.[4] At the time I decided to adjourn the appeal in order to give Mr Annalingam anopportunity to provide sound medical evidence to support the claim the deteriorationin his wife's health was so significant that it could impact on the sentence he hadreceived.[5] Accordingly, I consider in that respect I have made a final decision and itcannot be revisited. When it came to receiving fresh evidence on the state of the wife'shealth I gave specific directions regarding the nature of the evidence I should receive.This material has not been provided. Instead I have nothing more than a medical reportdated 21 November 2017 from the general practitioner who attends toMrs Annalingam.[6] When Mr Annalingam failed to comply with the direction regarding the qualityof the medical evidence to be provided, the Crown filed a submission inviting me todismiss the appeal on the grounds the evidence was not sufficient and non-compliant1 Annalingam v Police [2017] NZHC 2803.2 At [48].with the direction I had given. Further, the Crown raised doubts about whether itwould be appropriate in the context of a sentence appeal for me to take into accountdevelopments subsequent to the imposition of the sentence. Here the Crown relied onPoi v R where the Court of Appeal cast doubt on an appellate court's ability tointervene and allow a further reduction in the term of imprisonment because of anunfortunate post-sentencing event.3 In response to the Crown's memorandumMr Wiles has filed a further memorandum in which he confirms that he is content forthe balance of the appeal to be determined on the papers. He advises thatMr Annalingam is unable to provide further material in support of the sentence appeal,apart from the medical report dated 21 November 2017 which has been filed.[7] At the time I delivered the interim decision, counsel had not addressed me onthe legality of whether it is open to an appellate court to take into account post-sentencing circumstances as justifying a reduction in sentence. Secondly, I made itclear that evidence of the post-sentencing circumstances was to be provided in theform of affidavits annexing full medical reports by the relevant medical officer.Instead I have received no more than a medical report from the general practitionerresponsible for treating Mrs Annalingam.[8] As matters presently stand, I do not consider that the new evidence providedto me complies with the direction I gave in the interim judgment.4 Further, it has nowbeen brought to my attention that there may be no legal basis for me to take intoaccount post-sentencing circumstances to support allowing the appeal. I see no reasonto determine this legal issue because the material before me satisfies me that there isno proper basis to interfere with Mr Annalingam's sentence.[9] In the further memorandum Mr Wiles filed (dated 30 November 2017), he alsomade submissions regarding the effect of the sentence of 25 months' imprisonment asopposed to a sentence of 24 months' imprisonment, which would leaveMr Annalingam eligible for parole after serving 12 months of his sentence with theright to a parole release being given automatically. That sentence of 25 months'imprisonment is longer than a "short-term sentence" under s 4 of the Parole Act 2002,3 Poi v R [2015] NZCA 300 at [10]–[13].4 At [49].which means that Mr Annalingam will become eligible for parole sooner than hewould if he had served a sentence of 24 months' imprisonment. However, with thissentence there is no guarantee he will be granted parole. I understand the argumentsMr Wiles makes. However, I have already indicated in the interim judgment that thesentence of 25 months' imprisonment imposed by the District Court was notmanifestly excessive and there was no basis for interfering with the sentence otherthan if evidence of the wife's medical condition post-sentencing provided a basis forinterfering with the sentence. There are two reasons why that has not happened. First,the evidence provided to me is insufficient to achieve that outcome and secondly, thelegal basis for following that course of action is seemingly questionable. There is nobasis for me to take into account the further submissions Mr Wiles seeks to make onthe length of the term of imprisonment and the consequent availability of parole.[10] I am satisfied there is no proper basis for interfering with the sentence, andaccordingly the appeal is dismissed.Duffy J