Machado-Pereira v R

[2015] NZCA 423

IN THE COURT OF APPEAL OF NEW ZEALAND

CA107/2015
[2015] NZCA 423

BETWEEN	ANDRE MACHADO‑PEREIRA Appellant
AND	THE QUEEN Respondent

Hearing:	13 August 2015
Court:	Cooper, Simon France and Asher JJ
Counsel:	B L Sellars and C S Fredric for Appellant R M A McCoubrey and H G Max for Respondent
Judgment:	9 September 2015 at 11.30 am

JUDGMENT OF THE COURT

A        The appeal against the sentence of 11 years’ imprisonment is dismissed.

BThe appeal against an order imposing a 50 per cent minimum period of imprisonment is allowed and the minimum period of imprisonment is quashed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Simon France J)

1. Mr Machado‑Pereira appeals a sentence of 11 years’ imprisonment imposed by Judge Gibson in the District Court at Auckland in relation to one count of importing the class A drug cocaine.  A minimum period of imprisonment (MPI) of 50 per cent was also imposed.[1]

Facts

[1]R v Machado‑Pereira [2015] NZDC 3894.

1. Through the months of February and March 2012, a plan was put in place to export cocaine from South America to Australia via New Zealand.  It seems it was intended some of the cocaine would remain in New Zealand but most would be sent on to Australia.  The cocaine was hidden in suitcases.  Generally a courier would bring two suitcases into New Zealand, whereupon a co‑defendant, Mr Beaumont Blake, would take control of them.  A different courier would then be organised to take the drugs to Australia.

2. When police searched Mr Blake’s residence, more than five kgs of cocaine were located.  Previously one of the couriers had been arrested seeking to leave New Zealand with two suitcases in which there was found two kgs of cocaine, meaning at least seven kgs had entered New Zealand.

3. Mr Machado‑Pereira was involved in one importation in February 2012.  He brought in two suitcases estimated to contain between one–two kgs of cocaine.  Overall six offenders were identified, five of whom have been located and charged.  All but Mr Machado‑Pereira pleaded guilty and each received a 25 per cent discount for that.  Mr Machado‑Pereira sought a sentencing indication in which a similar discount was proffered but he chose to defend the charge.  Counsel advises that the defence was to put the Crown to the proof.

4. The final outcome in relation to all defendants is:[2]

   (a)Beaumont Blake, an organiser, 11 years and 3 months’ imprisonment, no MPI;

   (b)Gutiery Mota, an organiser, 10 years and 6 months’ imprisonment, no MPI;

   (c)Marcelo Nieves‑Mendonca, a courier, eight years and three months’ imprisonment, no MPI;

   (d)Ramesh Godschling, a courier, seven years’ imprisonment, no MPI;

   (e)Andre Machado‑Pereira, the appellant, a courier, 11 years’ imprisonment, 50 percent MPI.

   [2]R v Blake DC Manukau CRI‑2012‑092‑3255, 9 April 2013; R v Godschling DC Manukau CRI‑2012‑092‑9999, 21 September 2012; R v Machado-Pereira, above n Error! Bookmark not defined..

5. This highlights that the outcome for Mr Machado‑Pereira has been considerably worse than for his co‑defendants.  His final sentence is similar to that imposed on the organisers, and in terms of parole eligibility he is required to serve at least 21 months more than anyone else before reaching eligibility.  When compared only to the other couriers, he is required to serve 33 and 38 months’ imprisonment more than them before being eligible for parole.

Issue one: a minimum term of imprisonment

1. Having identified those figures, it is convenient to first address this aspect of the appeal.  Ms Sellars submits that an unjustified disparity exists which is “not consonant with the appearance of justice”.[3]  We agree.

   [3]R v Lawson [1982] 2 NZLR 219 (CA) at 223.

2. Considered in isolation, Mr Machado‑Pereira’s offending was such that an MPI was available.  This was a serious drug importation involving significant quantities of cocaine.  A case for denunciation and deterrence certainly existed, and the length of Mr Machado‑Pereira’s sentence is one which often attracts a minimum term.[4]

   [4]R v Anslow CA182/05, 18 November 2005.

3. However, Mr Machado‑Pereira was one of five defendants.  His part in the offending was confined to a single importation of less than one‑third of the quantity imported.  For none of the other offenders, including the organiser who was sentenced in relation to all the importations, was it considered that an MPI was required.  It may well be thought that the organisers in particular were very fortunate in this regard, but that is the situation that existed when Mr Machado‑Pereira came to be sentenced.  A different assessment of the need for denunciation and general deterrence in relation to the offending itself was not available to the sentencing Judge given what had already transpired.  We do not consider that an MPI could fairly be imposed on Mr Machado‑Pereira unless it was sourced in personal factors that set him apart from his co‑defendants.

4. No such personal factors exist.  Mr Machado‑Pereira is a 29 year old with no previous convictions.  He has family in Brazil, including an unwell mother, to whom he has responsibilities.  That will be his focus when he returns there.  There is little in his personal circumstances that suggests an MPI was necessary for reasons of individual deterrence or to protect the community.  Accordingly, this aspect of the appeal is allowed and the order under s 86 of the Sentencing Act 2002 is quashed.

Issue two: no credit for personal mitigating factors

1. It has long been established that the scope for recognising matters of personal mitigation is less in the area of serious drug offending than might be possible with other offending.  In R v Jarden the Supreme Court observed:[5]

   … As the courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence.  But that does not mean personal circumstances can never be relevant.

In Jarden itself, the Court held that the discount available for what were tragic personal circumstances arising shortly before trial could only be “modest” given “the crucial importance of deterrence”.[6]

[5]R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].

[6]At [14].

1. Against that background, we turn to the various matters advanced by Mr Machado‑Pereira in support of the claim that his personal circumstances were such that not to recognise them by way of an actual discount was an error.  The first group of factors focus on the increased hardship Mr Machado‑Pereira will experience due to being in a foreign jail separated from family and friends.  In his case this situation is submitted to be exacerbated by the heath situation of his mother.  She lives with Mr Machado‑Pereira and his wife, and is presently being treated in relation to hepatitis C.  It is also said that Mr Machado‑Pereira himself has mental health concerns.  There is evidence that about 10 years ago he was hospitalised following a drug overdose and he reported to the pre‑sentence report writer that he sometimes suffers from bad hallucinations.  He had sought referral to mental health authorities.

2. Care is needed before too much weight is attributed in these situations to the impact of jail in a foreign country.  It is undoubtedly an increased hardship, but in an area where deterrence is paramount, it must be recalled that the offender has chosen to run this very risk.  The only reason Mr Machado‑Pereira came to New Zealand in February 2012 was to bring in drugs.  He left a few days later having done so.  As noted in Chen v R, deterrence will not be achieved if leniency is shown to those who run the risk of being imprisoned far from families.[7]

   [7]Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174]–[175].

3. This point aside, the other matters relied on by Mr Machado‑Pereira are not such as to require recognition by way of sentence reduction.  His mother’s situation is unfortunate but existed prior to the offending.  As for Mr Machado‑Pereira’s own health, there is no evidence to suggest that proper assistance will not alleviate any issues.  His time in jail will of course be difficult but that is the cost of the offending.

4. The next group of factors relied on by Mr Machado‑Pereira concern his own circumstances.  It is noted he has not previously offended.  He wrote a letter to the sentencing Judge acknowledging his offending, apologising and offering to assist authorities. 

5. A lack of previous convictions is a matter that can be recognised but it was not an error here to fail to give some credit, given the context of serious drug offending and the fact that the offender is only 29 years of age.  That someone has not offended up until that age is not to be overemphasised, nor is this a case of positive contributions being put forward.  As regards Mr Machado‑Pereira’s letter of remorse, we do not consider it required particular acknowledgment.  It was written shortly before sentencing and only three weeks earlier Mr Machado‑Pereira had been maintaining his innocence to the pre‑sentence report writer.  The letter had the appearance of being motivated more by regret for his own situation.

6. We are not satisfied that any error has been shown nor that the final sentence of 11 years’ imprisonment is manifestly excessive.  This aspect of the appeal is dismissed.

Conclusion

1. The appeal against the sentence of 11 years’ imprisonment is dismissed.

2. The appeal against an order imposing a 50 per cent minimum period of imprisonment is allowed and the minimum period of imprisonment is quashed.

Solicitors:
Crown Law Office, Wellington for Respondent