Banaba v R - [2016] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

CA472/2015
[2016] NZCA 122

BETWEEN	GRAEME KEVIN BANABA Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2016
Court:	Randerson, Peters and Collins JJ
Counsel:	M N Pecotic for Appellant B D Tantrum and S L K Shaw for Respondent
Judgment:	13 April 2016 at 9:30 am

JUDGMENT OF THE COURT

AThe sentence appeal is allowed in part.
BThe concurrent sentence of six years imprisonment on the charge of selling cannabis is quashed and replaced with a concurrent sentence of four years imprisonment.
CThe sentence appeal is otherwise dismissed.

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REASONS OF THE COURT

(Given by Collins J)

Introduction

Mr Banaba appeals against a sentence of 13 years imprisonment with a minimum period of imprisonment (MPI) of five years and seven months imposed in relation to three charges of conspiring to import significant quantities[1] of methamphetamine from Canada to New Zealand.[2] Mr Banaba was also sentenced to a concurrent term of six years imprisonment in relation to a representative charge of selling cannabis.[3]
[1]Count 1 in the indictment concerned 2.861 kg of methamphetamine. Count 2 concerned 3.889 kg of methamphetamine. The methamphetamine involved in Count 3 is the source of some dispute, as we outline below.
[2]Under s 6(2A)(a) of the Misuse of Drugs Act 1975.
[3]Under s 6(1)(e).
The sentences in question were imposed after Mr Banaba pleaded guilty on 4 February 2015. He was sentenced by Judge Ronayne in the Auckland District Court on 3 August 2015. Mr Banaba’s sentencing hearing was delayed until his two co-defendants, Mr Hoang and Mr Tran, were convicted following their trial. All three defendants were sentenced at the same time.

Grounds of appeal

Mr Banaba appeals against his sentence on three grounds, namely:
(a)Judge Ronayne erred by setting a starting point of 15 years imprisonment by relying on a summary of facts that had not been accepted by Mr Banaba;
(b)the starting point of 15 years imprisonment was manifestly excessive; and
(c)insufficient credit was given for personal mitigating factors, namely for Mr Banaba’s voluntary surrender of firearms, remorse and guilty pleas.

Background

In this Court, Ms Pecotic, counsel for Mr Banaba, disputed issues in the summary of facts Judge Ronayne relied upon. It appears there were two summaries of facts. One summary of facts was prepared at the time Mr Banaba pleaded guilty and reflected those charges. Another more comprehensive summary of facts was prepared for the sentencing hearing at the Judge’s direction. According to Ms Pecotic, this second summary of facts was intended to capture the offending of both Mr Banaba and his co-defendants, although the first summary of facts does also refer to Mr Hoang and Mr Tran’s offending.
Ms Pecotic advised us that the first summary of facts was not agreed. Mr Banaba accepted about 80 per cent of the contents of that summary of facts. The Crown’s position is that it cannot be sure that Mr Banaba signed the first summary of facts.
In the circumstances, we allowed Ms Pecotic the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Banaba v R

Details

AGLC: Banaba v R [2016] NZCA 122
Case: [2016] NZCA 122
Decision Date: 13 April 2016 at 9:30 am

CaseChat Overview and Summary

The appellant, Graeme Kevin Banaba, appeals against the sentence of 13 years imprisonment with a minimum period of imprisonment (MPI) of five years and seven months imposed in relation to three charges of conspiring to import significant quantities of methamphetamine from Canada to New Zealand. Banaba was also sentenced to a concurrent term of six years imprisonment in relation to a representative charge of selling cannabis. The case was heard in the Court of Appeal of New Zealand, where Banaba's appeal was considered on three grounds: (a) the starting point of 15 years imprisonment was determined using a summary of facts that had not been accepted by Banaba, (b) the starting point of 15 years imprisonment was manifestly excessive, and (c) insufficient credit was given for personal mitigating factors, namely for Banaba's voluntary surrender of firearms, remorse and guilty pleas.

The Court of Appeal found that while there were issues with the starting point and the concurrent sentence for the cannabis charge, the overall sentence of 13 years imprisonment was not manifestly excessive. The Court allowed the appeal in part, quashing the concurrent sentence of six years imprisonment on the charge of selling cannabis and replacing it with a concurrent sentence of four years imprisonment. The sentence appeal was otherwise dismissed.

In summary, the Court of Appeal upheld the sentence of 13 years imprisonment and the MPI sentence of five years and seven months for the methamphetamine charges, but reduced the concurrent sentence for the cannabis charge from six years to four years imprisonment.

Orders