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de Macedo v R

de Macedo v R

Case [2020] NZCA 132 30 April 2020

Appeal

Sentencing

Minimum Period of Imprisonment

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Deterrence

Discount for Mitigating Circumstances

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IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA145/2018
[2020] NZCA 132

BETWEEN	MARLON BATISTA DE MACEDO Appellant
AND	THE QUEEN Respondent

Hearing:	26 February 2020
Court:	Miller, Dobson and Moore JJ
Counsel:	A J Maxwell-Scott for Appellant Z R Johnston for Respondent
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…

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 de Macedo v R

Details

AGLC: de Macedo v R [2020] NZCA 132
Case: [2020] NZCA 132
Decision Date: 30 April 2020 at 11.30am

CaseChat Overview and Summary

In this case, Marlon Batista de Macedo has appealed against his sentence of eight years and six months’ imprisonment, as well as the imposition of a minimum period of imprisonment (MPI) of 50 per cent of its length, for importing cocaine into New Zealand. The court was required to decide whether the guidelines set out in Zhang v R should apply to this case and, if so, what the appropriate sentence would be under those guidelines. The court also needed to determine whether an MPI was necessary in this case.

The court found that the guidelines in Zhang should apply to this case because the appeal against sentence was filed before the judgment in Zhang and the application of those guidelines would result in a more favourable outcome for Mr de Macedo. The court accepted that cocaine was presumptively as pernicious and harmful as methamphetamine and that there was no reason to suppose that cocaine should be considered more pernicious than methamphetamine in this case. The court found that Mr de Macedo's role in the importation was limited to that of a mere courier, with no other involvement in the transaction and no material financial interest. The court also found that the personal mitigating circumstances warranted a discount of eight per cent, and that Mr de Macedo's early guilty plea entitled him to a 25 per cent discount. The court considered that an MPI was not required in this case, as Mr de Macedo's 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.

The court allowed the appeal and quashed the sentence of eight years and six months’ imprisonment, substituting it with a sentence of seven years and four months’ imprisonment. The MPI imposed was also quashed.

Orders