de Macedo v R
[2020] NZCA 132
•30 April 2020 at 11.30am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA145/2018 [2020] NZCA 132 |
| BETWEEN | MARLON BATISTA DE MACEDO |
| AND | THE QUEEN |
| Hearing: | 26 February 2020 |
Court: | Miller, Dobson and Moore JJ |
Counsel: | A J Maxwell-Scott for Appellant |
Judgment: | 30 April 2020 at 11.30am |
JUDGMENT OF THE COURT
AThe appeal is allowed.
B The sentence of eight years six months’ imprisonment is quashed and substituted with a sentence of seven years four months’ imprisonment.
CThe minimum period of imprisonment imposed is also quashed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Dobson J)
On 16 March 2018, the appellant (Mr de Macedo) was sentenced in the District Court at Manukau to a term of eight years six months’ imprisonment,[1] having pleaded guilty to one charge of importing the class A drug cocaine into New Zealand. He has appealed the length of that sentence and also the imposition of a minimum period of imprisonment (MPI) of 50 per cent of its length.
[1]R v de Macedo [2018] NZDC 14569.
Mr de Macedo’s notice of appeal was lodged before the Full Court’s decision in Zhang v R.[2] The appeal was argued for Mr de Macedo on the basis that the guidelines in Zhang should apply because the appeal against sentence had been filed before the judgment in Zhang and the application of that decision would result in a more favourable outcome for him.[3]
[2]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
[3]At [188].
The Crown opposed the application of the guidelines in Zhang to offending involving class A drugs other than methamphetamine. Ms Johnston submitted that the guidelines in Zhang ought only to apply as a cross-check, as previously occurred in cocaine sentencing against the bands in R v Fatu, the previous guideline judgment on sentencing for dealing in methamphetamine.[4]
[4]Clarke v R [2013] NZCA 473 at [25]; and R v Fatu [2006] 2 NZLR 72 (CA).
In R v Ingram, this Court acknowledged that it might be appropriate to differentiate from Fatu when sentencing for dealing in class A drugs other than methamphetamine.[5] The Court observed that the differentiation versus uniformity debate has been engaged in only briefly and inconsistently by New Zealand courts.[6] A reasoned basis for differentiation between class A drugs would require evidence reliably ranking the relative levels of harm of all types caused by each of them.
[5]R v Ingram [2018] NZCA 252, [2018] 3 NZLR 783.
[6]At [60].
There was no evidence of that type in this case. Rather, Ms Maxwell-Scott argued for the application of the guidelines in Zhang on the basis that cocaine was presumptively as pernicious and harmful as methamphetamine, despite not attracting the same notoriety.
Given the circumstances and timing of this appeal, we will assess the challenge to Mr de Macedo’s sentencing by reference to the guidelines in Zhang. That is permissible because the legislature has categorised both as class A drugs and Fatu has traditionally been used as a cross-check when sentencing for other class A drugs.[7] In doing so, we do not intend that the Zhang guidelines should automatically apply in all cases of cocaine dealing. Rather, on the record before us in the present appeal, there is no reason to suppose that cocaine should be considered more pernicious than methamphetamine. The question whether any distinction should be drawn can be left for another day.
The circumstances of the offending
[7]Clarke v R, above n 4, at [25]. See also R v Cook [2017] NZHC 2034 at [28]–[29] and R v Dixon [2019] NZHC 920 at [31]–[33].
In September 2017, Mr de Macedo travelled from Brazil to Auckland via Dubai and was subject to a Customs search on arrival. Cocaine weighing 2383.5 grams was found hidden in the lining of his suitcase. Depending on circumstances of resale, the value of the cocaine imported ranged between approximately $1,072,000 and $1,668,000.
Mr de Macedo provided two different explanations for his involvement in the importation of the cocaine. In his initial interview with Customs, he stated he became involved at the initiation of a man named Renato, who had given him a loan to buy a suitcase and a phone, but his later explanation to a probation officer was that it was an all-expenses-paid trip in return for carrying a parcel for Renato. He claimed that he was advised that if he was caught he would simply be deported from New Zealand.
Mr de Macedo will now be 35 years old. He was 33 when sentenced in March 2018 and was single and unemployed at the time of his arrival in New Zealand. He was co-operative with the New Zealand authorities throughout and promptly entered a guilty plea. Members of his family wrote letters to the sentencing Judge in emotional and loving terms, emphasising that the offending was out of character, that he was a very good man and very much missed by them.
The District Court sentencing
Judge Bergseng adopted a starting point of 12 years’ imprisonment.[8] It was agreed as appropriate by both counsel appearing on sentencing and was consistent with precedent. The Crown had cited R v da Silveria and R v Nevarez.[9] In those cases, in offending that was materially indistinguishable from Mr de Macedo’s, 2350 grams and 2985 grams of cocaine respectively had been imported into New Zealand in the lining of suitcases. A 12-year starting point had been adopted in both those cases.
[8]R v de Macedo, above n 1, at [21].
[9]R v da Silveria [2014] NZHC 791; and R v Nevarez [2012] NZHC 1566.
The Judge accepted that there were no aggravating factors requiring an increase from the 12-year starting point.[10] He adopted a cautious approach to the extent that mitigating circumstances could be recognised for those convicted of dealing commercially in controlled drugs, citing the Supreme Court’s decision in Jarden v R.[11] The Judge accepted that serving a prison sentence in New Zealand would be more difficult for Mr de Macedo, given that his primary language is Portuguese and that he had only the most rudimentary English.[12] As a result, New Zealand cultural and social norms would be unfamiliar to him and he would be isolated in prison. The sentence was reduced by eight months to take account of those personal mitigating circumstances, and he was given 25 per cent discount for the guilty plea, reducing the end sentence to eight years six months’ imprisonment.
[10]R v de Macedo, above n 1, at [22].
[11]Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.
[12]R v de Macedo, above n 1, at [24]–[26].
The Judge considered the factors in s 86(2) of the Sentencing Act 2002 (the Act) as to whether to impose an MPI.[13] Referring to the judgment of this Court in Mok v R,[14] the Judge considered it relevant to hold Mr de Macedo accountable for the harm done to the community, to denounce the conduct and to deter him and others from committing similar offences. Influenced by the significant quantity of the drug, and the level of harm to the community had it not been intercepted, the Judge found that an MPI should be imposed. He set that at four years and three months, being 50 per cent of the end sentence.
The approach on appeal
[13]At [29]–[34].
[14]Mok v R [2017] NZCA 537.
Having decided that, at least in this case of importation of cocaine, the guidelines in Zhang should apply, we assess the offending against those guidelines rather than considering whether Mr de Macedo can make out an error in the pre‑Zhang sentencing.
The quantity of the class A drug involved in the offending remains a primary consideration. Band five in Zhang for two kilograms or more retains the same spread of years as applied under band four of Fatu, namely 10 years’ to life imprisonment. Greater flexibility within and possibly below that band is now recognised in Zhang, which allows closer analysis of the role played by the offender in fixing the level of culpability and thus the stage one sentence starting point.[15]
[15]Zhang v R, above n 2, at [118].
Adopting the indicia set out at [126] of Zhang, Mr de Macedo comes within a number of the “lesser” criteria, and none of those in the “significant” or “leading” categories. He appears to have been a naïve and possibly vulnerable candidate for exploitation by others, involved for the simple but crucial role of carrying a substantial quantity of cocaine across the border into New Zealand. He appears to have been involved for little or no financial gain beyond the cost of his trip to New Zealand. Further, he claimed that he believed that if apprehended with the packages, he would simply be deported from New Zealand. There is no suggestion he had any influence on those above him in the chain, or in any distribution of the drug once delivered in New Zealand.
Ms Maxwell-Scott submitted that, when measured against the criteria for lesser involvement as defined in Zhang, Mr de Macedo ought to be seen as below the bottom of band five. She supported that submission with the point that the cocaine was analysed as having a purity of 82 and 83 per cent, so that if the weight was reduced by the approximately 17 per cent of additives, the amount of pure cocaine would be below the two kilogram level. She contended for a starting point of nine years’ imprisonment if the very limited nature of his role justified placing the offending in band four of Zhang, where the range is between eight and 16 years’ imprisonment.
For the Crown, Ms Johnston submitted that, if Zhang was to be applied to this cocaine importation, then Ms Maxwell-Scott’s reliance on the indicia of lesser involvement overlooked the importance of the role played by the importer. Ms Johnston cited the observation from Zhang:[16]
Knowing participation in importation or manufacture should simply be treated as indicative of a more significant role and degree of culpability, attracting a higher sentence starting point across the range indicated.
[16]At [122].
We are mindful that couriers of cocaine involved in single imports of approximately the quantity involved here and using the same method have previously warranted a starting point of 12 years’ imprisonment.[17] Deterrence has been an important consideration. In this appeal, Ms Maxwell-Scott submitted that deterrence should not carry great weight when potential offenders in circumstances such as Mr de Macedo’s will be unaware of the severity of consequences, and not dissuaded from participating by the sentences given to others.
[17]R v da Silveria; and R v Nevarez, above n 9.
General deterrence remains a valid and important consideration in sentencing. It applies to residents of other countries who contemplate entering New Zealand with illicit drugs, the importation of which they must know is unlawful. They can be expected to enquire into what might happen to them if they are apprehended. This case supplies evidence of that: Mr de Macedo did enquire, although he was evidently led to believe he would merely be deported. Deterrence accordingly justifies high starting points for couriers notwithstanding that they sometimes act for little reward, or on a misunderstanding about the risk and/or consequences of apprehension.
However, we are prepared to accept that Mr de Macedo’s role in the importation was limited to that of a mere courier, having (as noted in [15] above) no other involvement in the transaction and no material financial interest. That warrants a reduction from the pre-Zhang starting point. It is not a reduction that necessarily will apply uniformly to other couriers importing similar quantities of class A drugs. It is, however, the appropriate application of Zhang considerations to this case.
We do not accept that Mr de Macedo can be placed any lower than the bottom of band five. Given the substantial extent to which his role comes within the “lesser” category, and the relatively modest margin above the bottom of band five that was involved in the importation, we consider the approach under Zhang dictates a starting point nearer the bottom of that band and fix it at 11 years.
Mitigating circumstances
Ms Maxwell-Scott submitted that the five per cent discount allowed for Mr de Macedo’s personal mitigating circumstances was too little. He was serving a lengthy prison sentence away from family and friends, isolated within the prison because of his complete lack of English at the time of sentencing,[18] he had previous good character and his naivety led to involvement in the offending.
[18]It was acknowledged that Mr de Macedo now has rudimentary English.
The effect of Ms Maxwell-Scott’s submission was that the Judge considered the Supreme Court decision in Jarden constrained the extent of discount for such personal mitigating factors that might be given in cases of serious drug offending.[19] It was submitted that reconsideration of this approach, as it applied at the second stage of sentencing in Zhang, illustrates that personal mitigating circumstances relating to the offender are equally applicable when dealing with class A drug offending as in any other offending.[20]
[19]Jarden v R, above n 11.
[20]Zhang v R, above n 2, at [136].
Ms Maxwell-Scott submitted that, assessed independently of the perceived constraint that relies on Jarden, the combination of mitigating circumstances for Mr de Macedo warranted a reduction of 10 to 15 per cent.
In opposing any greater reduction, Ms Johnston submitted that deterrence remained as important a consideration in sentencing post-Zhang, and that there was no error in the five per cent discount allowed by the sentencing Judge. Ms Johnston invited comparison with Mr Yip, one of the other individual appellants in Zhang, where the Court upheld a reduction of 13 per cent reflecting youth, genuine remorse, lack of prior convictions, limited English and distance from support systems.[21] Ms Johnston submitted that Mr de Macedo could not plead youth or particular remorse, so the discount of five per cent remained appropriate.
[21]At [301].
Establishing relativity with the extent of discount given for personal mitigating circumstances for other offenders such as Mr Yip cannot be an arithmetic exercise. The pre-sentence report acknowledges that Mr de Macedo regrets and is sorry for his offending, but those sentiments may arise out of concern for his own situation, including separation from his family, rather than remorse for the criminality of his offending. At the age of 35, assumed to be without prior convictions, he is an offender who will find serving a prison sentence in New Zealand substantially more difficult than those prisoners with the ability to communicate in English and with some measure of support from friends or family in this country. We consider a discount for these mitigating factors of eight per cent would be appropriate.
Accordingly, applying the Zhang guidelines to Mr de Macedo, we would adopt a starting point of 11 years or 132 months’ imprisonment and allow a discount of eight per cent for personal mitigating circumstances. From that point, it is accepted that Mr de Macedo’s early guilty plea entitled him to a 25 per cent discount, which we take together with the mitigation discount,[22] reducing the end sentence to 88.44 months or 7 years 4 months’ imprisonment. We are satisfied that is the appropriate sentence in this case.
MPI
[22]See Reweti v R [2018] NZHC 809 at [22]–[24].
Ms Maxwell-Scott submitted that the effect of the Judge’s reasoning in imposing an MPI was that such orders constituted one of the very few tools available in the war against drug offending, and that the imposition of an MPI was a matter of course for serious drug offending.
The Judge did refer to each of the four purposes of sentencing in s 86(2) of the Act, observing that the quantity of cocaine, and the level of harm that could have been done to the community, were significant. The Judge adopted an observation of this Court that the harm caused by importation of drugs means that “deterrence can fairly be viewed as paramount”.[23]
[23]R v de Macedo, above n 1, at 30 citing Mok v R, above n 14, at [14].
On all the information available about Mr de Macedo, it appears he will be adequately deterred from any attempted repetition of the importation of cocaine into New Zealand by the relatively lengthy sentence that we will substitute in allowing this appeal. We do not consider that an MPI is required to reinforce the deterrent signal for offending that occurs in the circumstances that arose here.
In Zhang, the Court rejected any notion of a presumption that MPIs should ordinarily be imposed where the length of sentences for drug offending was nine years or more.[24] An evaluative assessment of the criteria in s 86 is required in each case. In the individual appeals considered in Zhang, there are no close comparators for whether an MPI should be imposed here. However, the assessments in those appeals are instructive. In the cases of Messrs Zhang, Thompson and Yip, a substantially more serious level of commercial dealing was involved. Mr Zhang was convicted of importing 17.9 kilograms of methamphetamine,[25] and Mr Thompson was convicted on a representative charge of supplying 4.2 kilograms and possessing 2.6 kilograms of methamphetamine for supply.[26] Mr Yip was convicted on the lead charge of importing the even larger volume of 60.9 kilograms of methamphetamine, as well as other convictions for supply and attempted supply.[27] In those cases where substantially longer end sentences were fixed, the Court considered that insufficient deterrent signals would be sent if the usual entitlement to parole after one third was to apply.
[24]Zhang v R, above n 2, at [172]–[174].
[25]At [246]–[264].
[26]At [265]–[281].
[27]At [282]–[309].
In contrast Ms Hobson, another of the individual appellants in Zhang, was convicted on three charges of importing 300 grams of methamphetamine, three charges of possession for supply and one of conspiracy to supply 290 grams.[28] This Court reduced her sentence from nine years to seven years 10 months’ imprisonment and quashed the MPI that had been imposed by the District Court. The Court considered that too much emphasis had been placed on deterrence and that positive rehabilitative prospects ought to have been given their ordinary scope. In Ms Hobson’s circumstances, an MPI was not warranted.
[28]At [229]–[245].
As noted in Zhang, the fact that an offender will be deported on release is not a proper ground for refusing an MPI if it is otherwise appropriate.[29]
[29]At [168].
Mr de Macedo’s circumstances are probably closer to those of Ms Hobson than the other individuals considered in Zhang. His role as a courier was a relatively low‑level one in the importation, he had no other involvement, he accepted responsibility with an early guilty plea and there were no other aggravating features of the offending. We accordingly consider that an MPI is not required.
Outcome
We allow the appeal and quash the sentence of eight years six months’ imprisonment, and substitute it with a sentence of seven years four months’ imprisonment. The MPI imposed is also quashed.
Solicitors:
Crown Law, Wellington for Respondent
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