Hura v The King
[2023] NZCA 7
•10 February 2023 at 11.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA417/2022 [2023] NZCA 7 |
| BETWEEN | JAYDEAN RIIPIA HURA |
| AND | THE KING |
| CA418/2022 | ||
| BETWEEN | MARK JAMES LANG | |
| AND | THE KING | |
| Hearing: | 23 November 2022 |
Court: | Goddard, Woolford and Fitzgerald JJ |
Counsel: | H G de Groot for Appellants |
Judgment: | 10 February 2023 at 11.00 am |
JUDGMENT OF THE COURT
AThe applications for extension of time to appeal are granted.
BThe appeals are allowed.
CThe minimum period of imprisonment imposed on each appellant is set aside.
____________________________________________________________________
REASONS OF THE COURT
(Given by Goddard J)
In 2016 Mr Hura and Mr Lang pleaded guilty and were sentenced on charges arising out of their involvement as “cooks” in a large-scale methamphetamine manufacturing operation.
Mr Hura pleaded guilty to five charges of manufacturing methamphetamine and one charge of participating in an organised criminal group. On 22 April 2016 he was sentenced by Lang J to 16 years and 8 months’ imprisonment on each of the manufacturing charges.[1] The Judge imposed a minimum period of imprisonment (MPI) of 50 per cent on those charges: Mr Hura was ordered to serve a minimum term of imprisonment of 8 years and 4 months.[2]
[1]R v Hura [2016] NZHC 777 (Hura sentencing notes). Mr Hura was sentenced to 4 years’ imprisonment on the charge of participating in an organised criminal group. The sentences were to be served concurrently
[2]Hura sentencing notes, above at [31].
Mr Lang pleaded guilty to two charges of manufacturing methamphetamine and one charge of possessing equipment with intent that it be used in the manufacture of methamphetamine. On 16 August 2016 he was sentenced by Moore J to 14 years and 4 months’ imprisonment on the manufacturing charges.[3] A 50 per cent MPI was imposed on the two manufacturing charges: he was ordered to serve a minimum term of 7 years and 2 months’ imprisonment.
[3]R v Lang [2016] NZHC 1899 (Lang sentencing notes). On the charge of possessing equipment for manufacture of methamphetamine, Mr Lang was sentenced to 3 years’ imprisonment. The sentences were to be served concurrently.
Neither Mr Hura nor Mr Lang appealed against their sentences at the time they were imposed. Each now wishes to challenge one aspect of their sentence: the imposition of a 50 per cent MPI. In order to do so, they seek an extension of time to appeal, some six years after their respective sentencings.
The appellants submit that at the time they were sentenced, it was standard practice for courts to impose a 50 per cent MPI in cases of serious drug offending. However since then, a Full Bench of this Court has confirmed that imposing an MPI as a matter of routine is not consistent with s 86 of the Sentencing Act 2002.[4] Rather, a reasoned analysis is required both in relation to the imposition of an MPI and its length. The appellants say that imposition of an MPI was not justified in their cases.
[4]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].
We have concluded that despite the appellants’ lengthy delay in pursuing an appeal, the merits of both appeals are strong. The delay by each appellant, and in particular Mr Lang, in pursuing their appeal has to some extent been explained. It is in the interests of justice to extend the time for appealing against the MPIs that were imposed, and to allow the appeals and set aside the MPIs. Our reasons for these conclusions are set out below.
Background
In July 2014 the New Zealand police began a large-scale covert investigation of an organised criminal group engaged in methamphetamine manufacturing and distribution. The group was led by Mr Brownie Harding, a patched member of the Head Hunters motorcycle club. It was made up of patched members of the Head Hunters and several associates. Mr Harding sourced the equipment and raw materials, recruited the group’s members, and co-ordinated the production and distribution of the methamphetamine that was produced.
The methamphetamine was manufactured at an isolated rural address in Northland. It was sold throughout the Auckland and Northland regions.
The surveillance conducted by the police revealed that between September and December 2014 six discrete manufacturing phases took place. There were at least four cooks. They worked in shifts, manufacturing batches of methamphetamine. Moore J described the operation as “a methamphetamine factory operating at a high commercial level”.[5] Estimates of the quantity of methamphetamine produced vary, but it appears to have been at least 6.5 kg.[6]
Mr Hura’s sentencing
[5]Lang sentencing notes, above n 3, at [11].
[6]R v Harding [2017] NZHC 1181 at [116]–[117].
Mr Hura was 34 years old at the time of the offending. He was a patched member of the Head Hunters.
Mr Hura had a difficult upbringing characterised by a lack of parental involvement and poverty. By the age of 12 he was abusing marijuana and alcohol. Alcohol and violence played a large part in his life. He stopped attending school in the third form: he has no formal High School education.
When Mr Hura was 15 he got his first paid job as a roofer. He went on to become a qualified roofer. During that time he began using methamphetamine. By the time he was 25 years old he was using the drug regularly, and was addicted. He also started gambling. This led to the breakdown of his relationship with his partner, the mother of his child. Around the same time he started losing jobs and the ability to keep employment. In order to maintain his methamphetamine habit, he learned how to “cook” methamphetamine because that ensured his supply and kept him fed. That in turn led to his involvement with the Head Hunters, and involvement in Mr Harding’s operation. At the time he was approached to become involved in the operation he was unemployed, and was in debt because of his own addiction. He became involved in order to obtain drugs.
Mr Hura was charged on the basis that he participated in five of the group’s six manufacturing phases. As already mentioned, he pleaded guilty and was sentenced to 16 years and 8 months’ imprisonment with a 50 per cent MPI.
The Judge undertook the usual two stage sentencing analysis. He began by assessing the culpability of Mr Hura’s offending. Mr Hura had been involved as a cook in five of the six manufacturing phases. He was not involved in the distribution of methamphetamine. His sole role was to manufacture it. He was not the only person manufacturing the methamphetamine. He did not receive the overall profits of the offending. It appears he was paid in methamphetamine to meet his own addiction.[7] The Judge selected a starting point of 21 years’ imprisonment to reflect Mr Hura’s culpability on all charges.[8]
[7]Hura sentencing notes, above n 1, at [17]–[19].
[8]Hura sentencing notes, above n 1, at [20].
Mr Hura had some previous convictions, but this was the first time he had appeared before the Court on drug-related charges. The Judge considered that the previous convictions did not warrant any uplift from the starting point.
The Judge did not consider that the level of remorse Mr Hura had displayed and the steps he had taken towards rehabilitation were sufficient to warrant a specific discount, given the serious nature of the offending.[9] The Judge applied a discount of 20 per cent for Mr Hura’s guilty pleas. The end result was a sentence of 16 years and 8 months’ imprisonment.
[9]At [24].
The Judge then turned to the question of an MPI. He said:
[29] The nature of your offending means I am required to consider whether to impose a minimum term of imprisonment. Ordinarily, an offender who serves a term of imprisonment of more than two years must serve one-third of his or her sentence before being eligible to apply for parole. The Court has the power under s 86 of the Sentencing Act 2002 to order that an offender serve a longer term of imprisonment before being eligible to apply for parole. It may do that in any case where it is satisfied that the normal parole provisions are not sufficient to adequately reflect sentencing principles of deterrence, denunciation, accountability and the need to protect the public. In cases of very serious Class A drug offending, the courts have often imposed minimum terms of imprisonment of around the 50 per cent mark. They do so because such offending invariably satisfies all four of the criteria to which I have referred.
[30] In your case, you would be eligible to apply for parole after serving just over five years of your sentence. Given the seriousness of your offending, I consider that this would be manifestly inadequate to reflect the sentencing principles referred to in s 86. For that reason, I accept the Crown’s submission that a minimum term of imprisonment of 50 per cent is justified.
Mr Lang’s sentencing
Mr Lang was aged 40 at the time of the offending. He was not a member of the Head Hunters. He had worked in Australia as a fabrication engineer, involved in ship building and the mining industry. He then returned to New Zealand, where he developed a methamphetamine addiction that progressed to daily use.[10]
[10]Mr Lang’s sentencing proceeded on the basis that Mr Lang was introduced to methamphetamine by the other cooks in the Harding operation. But Mr Lang’s affirmation filed in support of his application for an extension of time confirms he was a user, and addicted, before he became involved.
Mr Lang says that in order to try to break this habit, he moved to his parents’ home on a remote Northland lifestyle block. That address was next door to the property at which Mr Harding was running his methamphetamine manufacturing operation. Following some social interactions with his neighbours, in the course of which they became aware of his background as an engineer, Mr Lang was approached by them and asked to fix a piece of equipment. Mr Lang says that he quickly worked out what was going on. He saw participation in the operation as a way he could feed his own addiction.
Mr Lang was charged on the basis that he participated in two of the six manufacturing phases. On the two charges of manufacturing methamphetamine Mr Lang was, as already mentioned, sentenced to 14 years and 4 months’ imprisonment with a 50 per cent MPI.
The Judge arrived at a starting point by comparing Mr Lang’s conduct to that of his co-offenders who had already been sentenced. That included Mr Rogers and Mr Hura. The Judge agreed with the Crown’s submission that Mr Lang was less culpable than Mr Rogers (starting point of 25 years’ imprisonment) and Mr Hura (starting point of 21 years’ imprisonment). The Judge considered that a starting point of 19 years imprisonment was appropriate.[11]
[11]Lang sentencing notes, above n 3, at [30].
The Judge then considered Mr Lang’s personal circumstances. He had no relevant previous convictions. He expressed remorse for his offending and acknowledged his wrongdoing. The Judge said that while Mr Lang’s largely positive history would ordinarily warrant recognition in the sentencing process “the Courts have repeatedly and consistently emphasised that personal circumstances carry little weight in cases involving commercial drug dealing.”[12] The Judge applied a “modest discount” of 5 per cent in recognition of Mr Lang’s generally good past character and remorse.[13] In the circumstances, he said, he was “simply unable to go further”.[14]
[12]At [34].
[13]Lang sentencing notes, above n 3, at [34].
[14]At [34].
A discount of 20 per cent was allowed for Mr Lang’s guilty plea. That brought the end sentence down to 14 years and 4 months’ imprisonment.
The Judge then considered the imposition of an MPI, saying:
[37] In the normal run of things, a defendant who is sentenced to a term of imprisonment of more than two years will be eligible to apply for parole after they have served one third. However, s 86 of the Sentencing Act 2002 gives the Court the power to order a defendant to serve a longer minimum period of imprisonment where the grant of parole after the normal period would not be adequate to address the sentencing principles of deterrence, denunciation and accountability. The Court of Appeal has confirmed that in cases of very serious drug dealing it is almost inevitable that the criteria for a minimum period of imprisonment will be met.
[38] Minimum periods of 50 per cent were imposed in respect of Mr Rogers, Mr Mangu and Mr Hura. Mr Lang, I can see no proper basis for treating you any differently. Given the sheer quantity of methamphetamine that was produced and the role you played in the enterprise, a failure to do so would mean that the principles of sentencing would not be given due recognition.
[39] Accordingly, I order that you are to serve 50 per cent, namely seven years and two months’ imprisonment before you are eligible for release.
(Footnote omitted) (Emphasis added)
The imposition of an MPI — relevant principles
Before discussing the merits of the applications for extension of time, and of the appeals, it is helpful to outline briefly the principles that govern the imposition of an MPI.
A person who is sentenced to more than two years’ imprisonment generally becomes eligible for parole after serving one-third of their sentence. But under s 86(2) of the Sentencing Act 2002, a court may order that the offender serve an MPI that is longer than the period applicable under the Parole Act 2002 if the sentencing court is satisfied that the standard one-third MPI is insufficient to achieve all or any of the following purposes:[15]
(a)holding the offender accountable for the harm done to the victim and the community by the offending:
(b)denouncing the conduct in which the offender was involved:
(c)deterring the offender or other persons from committing the same or a similar offence:
(d)protecting the community from the offender.
[15]Section 86(2).
An MPI must not exceed the lesser of two-thirds of the full term of the sentence, or 10 years.[16]
[16]Section 86(4).
At the time the appellants were sentenced in 2016, the imposition of an MPI for a cook in a large-scale methamphetamine operation was not unusual. To the contrary, it was the orthodox approach in cases of serious drug dealing, in light of this Court’s decision in R v Wong.[17] In Wong, this Court said that in cases of very serious drug dealing, it will be “almost invariable” that the criteria for imposing an MPI under s 86(2) of the Sentencing Act will be met, although its discretion will never be fettered.[18]
[17]R v Wong [2009] NZCA 332.
[18]At [21].
However since then, a Full Bench of this Court in Zhang v R held that imposing an MPI as a matter of routine is not consistent with s 86 of the Sentencing Act.[19] Rather, a reasoned analysis is required both in relation to whether an MPI should be imposed, and the length of any MPI. That means that while the imposition of an MPI in cases of very serious drug offending may still be required, that must be a conclusion reached on the facts of a particular case.[20] This Court said:[21]
As this Court has emphasised in other decisions, minimum periods of imprisonment must not be imposed as a matter of routine or in a mechanistic way. It is not sufficient for a judge simply to recite s 86 without more. A reasoned analysis is required, both as regards the imposition of a minimum period of imprisonment and its length. In a number of recent appeals, this Court having undertaken that analysis has concluded that either the sentencing judge was wrong to impose a minimum period of imprisonment or that its length was excessive and not justified.
[19]Zhang v R, above n 4, at [169].
[20]Rogers v R [2022] NZCA 39 at [34].
[21]Zhang v R, above n 4, at [169].
In a number of subsequent decisions where this approach was applied, it has been held that lengthy periods of imprisonment and the standard MPI were sufficient to meet the sentencing purposes referred to in s 86(2) of the Sentencing Act. An MPI greater than the standard one-third MPI was not required.[22]
[22]Wilkinson v R [2021] NZCA 438 at [27]–[28]; Tran & Navarro v R [2021] NZCA 464 at [55]. See also Thai & Te-Hira [2021] NZHC 1006.
The practical significance of the appellants’ challenges to the imposition of an MPI is that they will determine when the appellants will become eligible for parole: whether that will be after serving the standard period of one-third of their respective sentences, or only after serving 50 per cent of those sentences.
It is important to bear in mind that an offender becoming eligible for parole does not mean that the offender will automatically be released on parole. Rather, it means that the offender is able to apply for parole. The Parole Board can then consider whether the offender is ready to be released into the community on parole. In making that decision, the paramount consideration for the Parole Board is community safety.[23] An offender who is released on parole remains liable to be recalled to prison during the remainder of their sentence if they breach any of the parole conditions imposed by the Parole Board.
Applications for extension of time
[23]Parole Act 2002, s 7(1).
An appeal against sentence must normally be brought within 20 working days from the date on which the sentence is imposed.[24] However the appeal court may extend the time allowed for filing a notice of appeal.[25] In deciding whether to grant an extension of time, the appeal court must strike a balance between public and private interests.[26] The public interest favours finality. There is also a public interest in the maintenance of confidence in the administration of justice. The appellants’ private interests favour an extension, particularly where a conviction or liberty is at stake. The interests of others involved in the case (such as victims) may also favour finality.[27]
[24]Criminal Procedure Act 2011, s 248(2).
[25]Section 248(4).
[26]Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [51]; and R v Knight [1998] 1 NZLR 583 (CA) at 587.
[27]Cheung v R, above n 26, at [51].
In R v Knight this Court said that in order to succeed in an application to extend time to appeal, the applicant must demonstrate some special feature or features particular to the case that lead to the conclusion that in all the circumstances justice requires that leave be given:[28]
Amongst the considerations which will also be relevant in that overall assessment are the strength of the proposed appeal and the practical utility of the remedy sought, the length of the delay and the reasons for the delay, the extent of the impact on others similarly affected and on the administration of justice, that is flood gates considerations, and the absence of prejudice to the Crown.
[28]R v Knight, above n 26, at 589.
The appellants only challenge the MPIs imposed. They do not challenge their convictions or the length of the sentences imposed. The result of allowing the appeals would not be a further trial. So some considerations, such as such as the interests of victims or witnesses or difficulty of retrying the case, do not arise here.[29]
[29]Cheung v R, above n 26, at [54].
The factors of particular relevance in the present cases are the length of the delay and the reasons for it, and the strength of the proposed appeals.
As already mentioned, from a practical perspective what is in issue in each case is the date at which the appellant will first become eligible to be considered for parole by the Parole Board. That bears on the liberty of each appellant. So an error in imposing an MPI would be a material factor favouring the grant of an extension of time. As this Court said in Cheung:[30]
The period of 20 months inadequately-explained delay would likely preclude an extension of time in other cases. But we find that a minimum period of imprisonment was not required in this case and the very substantial difference between the statutory minimum period (one third of the sentence) and the minimum period imposed is a special circumstance justifying an extension in the circumstances.
[30]At [73].
The strength of the proposed appeals is addressed in more detail below. But first, we consider the length of the delay and the reasons for it in each case.
Mr Hura: length and reasons for the delay
As already mentioned, Mr Hura was sentenced on 22 April 2016. His application for an extension of time to appeal was filed on 18 August 2022, more than six years out of time.
Mr Hura provided an affirmation setting out the background to his application for an extension of time to appeal. He says that he was not aware of his legal rights in relation to an appeal after his sentencing. The possibility of an appeal was not something his lawyer discussed with him, to the best of his memory. In particular, he did not understand that he could appeal against an MPI on its own, without challenging his conviction or other aspects of his sentence.
Recently Mr Hura became aware that his co-offender and fellow inmate, Mr Rogers, had successfully applied to this Court to appeal out of time and to have his MPI set aside. That was when Mr Hura first became aware that an MPI could be appealed on its own. Mr Rogers subsequently reached out to Mr Hura to encourage him to try to do the same.
Mr Hura says that a reduction in his MPI will have a significant practical effect. He has a clean prison history. He is currently housed in a self-care unit classified as minimum/low security. Once he passes his parole eligibility date, he will be eligible for programmes such as “release to work”.
Mr Hura says that he no longer identifies as a Head Hunter member in prison. He does not keep in touch with former associates or members of the gang. He has left those associations behind. He has yet to formally hand his membership back, but this is something he intends to do once he is released and in a position to do so. Mr Hura says he realises it is the right thing for him to do. It is not a decision he has arrived at lightly: “It took a lot of internal working through for many reasons. Especially when being a member has kept me safe moving through different environments.”
Mr Hura says he now sees where he went wrong and is actively trying to create a positive future for himself and repair his relationship with his daughter. That will be his main priority once he is released from prison. He says that is the main driving factor behind his application for an extension of time to appeal, so he can reconnect with his daughter and get to know her.
Mr Lang: length and reasons for the delay
Mr Lang was sentenced on 16 August 2016. His application for an extension of time to appeal was filed on 18 August 2022, just over six years out of time.
Mr Lang provided an affirmation setting out the background to his application for an extension of time to appeal. At the time of his sentencing in August 2016 he considered that the sentence he received was unjust, especially the MPI. He asked his parents to ask his lawyer what appeal rights he had, as it was not easy for him to contact his lawyer from prison. Mr Lang’s mother spoke to his then lawyer, and reported to Mr Lang that the lawyer’s view was that he just had to serve his sentence and apply for parole once the time arrived.
In 2017 Mr Lang learned from another inmate that he could seek to appeal out of time, and could appeal the MPI on its own. A family member of the other inmate had succeeded in doing so. Mr Lang wrote to the lawyer who had represented the other inmate’s family member, but heard nothing back. He asked his mother to contact that lawyer. She tried to call and left several voicemails, but no-one returned her calls. She also attempted to email that lawyer, with an equal lack of success. After that, Mr Lang says, they gave up for a time.
In 2018 Mr Lang was transferred to Hawkes Bay Regional Prison. He wrote to Hastings Community Law Centre to try to get more information about appealing his MPI. But he did not receive a response.
In 2019 Mr Lang saw that another inmate had a legal aid form, and that on that form there was a section where you could appeal your sentence without appealing your conviction. Mr Lang made himself a copy of the form, filled it in and sent it to Legal Aid at the address shown on the form.
In 2020 Legal Aid wrote back granting the application and informing Mr Lang they had appointed a lawyer to represent him. Mr Lang spoke to that lawyer by telephone. The lawyer advised that Mr Harding was going through the appeal process and Mr Lang should wait to see what happened with that appeal. Mr Lang did not want to adopt that course of action. But subsequent attempts to contact that lawyer, and discuss the appeal with him, were unsuccessful.
At that point, Mr Lang says, he gave up trying. He decided to focus on rehabilitation and the things the prison could offer him. He has made significant progress towards those goals. He is housed in the Whare Tirohanga Māori Unit. He became a tohunga whakairo | master carver. He has been involved in pōwhiri and presentations for visitors to the prison, including a number of Cabinet Ministers. He has been a mentor for other men. He is very involved in Kaupapa Māori pathways within the prison. He is a trusted worker and has been outside the prison on many occasions, including to work on carving projects.
Mr Lang subsequently became aware that his co-offender and fellow inmate, Mr Rogers, had successfully pursued an appeal out of time against the MPI imposed on him. Mr Rogers gave Mr Lang contact details for his lawyer, so he could try to do the same.
Factors relevant to an extension of time in this case
The six year delay in pursuing these appeals is very long. The explanations provided by Mr Hura and Mr Lang go some way to explaining that delay. In particular, it appears that Mr Lang actively sought to pursue an appeal but encountered a number of barriers to doing so. But those explanations are not in themselves sufficient to justify departure from the principle of finality, in the absence of some other special features which support an extension of time. In these two cases, that comes down to the strength of the proposed appeals against imposition of an MPI, as the Crown acknowledged. If an MPI should not have been imposed in one or both cases, then as in Cheung that has implications for the liberty of the appellant(s), and would weigh strongly in favour of an extension of time. We therefore turn to the merits of the appeals. We then return to the question of extension of time.
Should a 50 per cent MPI have been imposed in Mr Hura’s case?
Submissions on appeal
Mr de Groot, counsel for Mr Hura and Mr Lang, submitted that in both cases an MPI had been imposed without the fact-specific analysis required by s 86 of the Sentencing Act.
The catalyst for both of these appeals was the successful appeal by Mr Rogers against his MPI.[31] But Mr de Groot emphasised that this appeal was not brought on a parity basis. As this Court explained in Rogers, whether an MPI should be imposed involves a fact-specific inquiry. It does not follow from the imposition of an MPI for one offender that the same MPI should automatically apply to all offenders involved in that offending. That approach would lead to the mechanistic and routine application of MPIs that this Court has said should cease.[32]
[31]Rogers v R, above n 20.
[32]At [44].
Rather, Mr de Groot submitted that the same reasoning that led this Court to allow Mr Rogers’ appeal should lead this Court to allow the appeals of Mr Hura and Mr Lang. In their cases, as in Mr Rogers’ case, an MPI was imposed with little discussion. It was treated as inevitable, consistent with the approach adopted by this Court in Wong. But the subsequent guidance of this Court in Zhang confirms that an individual assessment is required in each case, by reference to the sentencing purposes identified in s 86(2) of the Sentencing Act. Mr de Groot submitted that no such consideration had taken place here. If it had, an MPI of 50 per cent would not have been imposed in either case.
The Crown submitted that Rogers was one of the rare cases where private interests outweighed the public interest in finality. Mr Rogers’ unique personal circumstances went a long way to meeting the four sentencing purposes referred to in s 86(2) of the Sentencing Act. Mr Hura’s circumstances are less compelling. In particular, he remains a member of the Head Hunters. Whether Mr Hura’s special circumstances are sufficient to justify granting an extension of time and not imposing an MPI is more problematic.
Was the 50 per cent MPI justified in Mr Hura’s case?
The Judge proceeded on the basis that serious drug offending invariably satisfies the four sentencing purposes identified in s 86(2) of the Sentencing Act.[33] But as this Court said in Zhang, it is not appropriate to make that assumption. Rather, it is necessary to consider the length of the sentence imposed and ask whether the normal parole period is sufficient to achieve the sentencing purposes identified in s 86(2).[34]
[33]Hura sentencing notes, above n 1, at [29] set out at [17] above.
[34]Zhang v R, above n 4, at [277].
In this case, the sentence imposed on Mr Hura — 16 years and 8 months’ imprisonment — was a lengthy one. Under that sentence, he would not be eligible for parole until he had served 5 years and 7 months in prison. The effect of the MPI was to increase that minimum period of imprisonment by 2 years and 9 months.
We consider that the lengthy sentence imposed on Mr Hura, coupled with the (standard) MPI of 5 years and 7 months, is sufficient to hold him accountable for the harm done to the community by his offending. It denounces the conduct in which he was involved. It is a very significant deterrent to drug-related offending.
So far as protection of the community is concerned, the information before the Judge indicated that Mr Hura had taken steps towards rehabilitation while in prison on remand. He had wide family support. Letters from his employer showed he was a worthwhile, honest and hard-working employee.[35]
[35]Hura sentencing notes, above n 1, at [23].
The promise that was apparent at the time of sentencing has been confirmed by Mr Hura’s conduct while in prison, and the significant rehabilitative progress he has made. Although he has not yet formally handed back his membership of the Head Hunters, he says he is committed to doing so, and has severed ties with the gang and with associates who remain members of that gang.
There is good reason to think that Mr Hura need not be detained for an additional 2 years and 9 months in the interests of the safety of the community. His continuing membership of the Head Hunters was at the time of sentencing, and remains, a risk factor. However we consider that whether Mr Hura can be released without putting the community at risk after 5 years and 7 months in prison is best assessed by the Parole Board at the relevant time, with all the information that will then be available to it. The information available at the time of his sentencing did not compel a conclusion that a longer MPI was required to protect the community.
The fact-specific engagement with the s 86(2) sentencing purposes mandated by Zhang leads us to the conclusion that an MPI longer than the standard period was not required in Mr Hura’s case. The imposition of a 50 per cent MPI in 2016, although orthodox at that time, was not in our view consistent with the requirements of the Sentencing Act.
Outcome
We have concluded that the merits of Mr Hura’s appeal are strong. A 50 per cent MPI should not have been imposed. Mr Hura’s liberty — or more precisely, his opportunity to achieve liberty if he continues to make good progress with rehabilitation and poses no risk to the community — is engaged. In those circumstances, the interests of justice require that an extension of time be granted despite the lengthy delay in seeking to bring an appeal, and that his appeal be allowed.
Should a 50 per cent MPI have been imposed in Mr Lang’s case?
Submissions on appeal
The submissions made by Mr de Groot on behalf of Mr Lang paralleled those he made on behalf of Mr Hura, which are set out above.
Similarly, the Crown’s submissions on Mr Lang’s appeal essentially paralleled those made in respect of Mr Hura’s appeal, as summarised above. The issue of continuing gang membership does not however arise in respect of Mr Lang.
Was a 50 per cent MPI justified in Mr Lang’s case?
The approach adopted to imposition of an MPI when sentencing Mr Lang was consistent with this Court’s decision in Wong. The imposition of an MPI was treated as “almost inevitable” in circumstances where Mr Lang had been convicted of serious drug dealing. But as explained above, this Court has since emphasised in Zhang that a reasoned analysis by reference to the sentencing purposes in s 86(2) of the Sentencing Act is required.
The sentence of 14 years and 4 months’ imprisonment imposed on Mr Lang is a lengthy sentence that in itself emphasises accountability, denunciation and deterrence. The standard MPI for that sentence would be 4 years and 9 months. The effect of the 50 per cent MPI was to increase that minimum period of imprisonment by 2 years and 3 months.
As with Mr Hura, we do not consider that this is a case in which a longer MPI was necessary to achieve the sentencing purposes in s 86(2). The sentence imposed on Mr Lang, and the standard MPI of 4 years and 9 months’ imprisonment, are in our view sufficient to hold Mr Lang accountable for the harm done to the community, to denounce his conduct, and to deter similar offending.
The material before the Judge did not suggest that Mr Lang was likely to pose a material risk to the community after serving the standard MPI. To the contrary, there was reason to be optimistic that he would return to his former productive life. The information we have received about Mr Lang’s conduct in prison confirms that that optimism was well-founded. As with Mr Hura, we consider that the assessment of whether Mr Lang needs to remain in custody to protect the safety of the community after serving one-third of his sentence is best carried out by the Parole Board at the relevant time. Put another way, there was nothing before the Judge to suggest that Mr Lang posed such a threat to the safety of the community that its protection required a longer MPI to be imposed at that time.
The Judge saw parity with Mr Rogers and Mr Hura as a relevant factor in imposing an MPI on Mr Lang. To the extent that parity between co-offenders is relevant here — and as this Court explained in Rogers, an individualised approach to imposing MPIs means it is not a significant factor[36] — the successful appeal by Mr Rogers and the conclusion we have reached above in relation to Mr Hura now point the other way.
[36]Rogers v R, above n 20, at [43]–[44].
In summary, we have concluded that the imposition of a 50 per cent MPI, rather than the standard MPI, was not required by the sentencing purposes identified in s 86(2) of the Sentencing Act. The 50 per cent MPI was orthodox at the time the sentence was imposed, but in light of the guidance provided by this Court in Zhang it should not have been imposed.
Outcome
The merits of Mr Lang’s appeal are strong. A 50 per cent MPI was not appropriate in this case. His liberty is at stake. In these circumstances, the interests of justice require that an extension of time to appeal be granted, and that the appeal be allowed.
Result
The applications for extension of time to appeal are granted.
The appeals are allowed.
The minimum period of imprisonment imposed on each appellant is set aside.
Solicitors:
Crown Solicitor, Whangarei for Respondent
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