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)

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.

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.
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.
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.
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..
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…

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.

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Details

Case: [2015] NZCA 423
Decision Date: 9 September 2015 at 11.30 am

CaseChat Overview and Summary

The Court of Appeal of New Zealand considered the appeal of Andre Machado-Pereira against his sentence of 11 years’ imprisonment and the imposition of a 50% minimum period of imprisonment. The appeal was brought against the decision of the District Court at Auckland, which had convicted Machado-Pereira of importing cocaine into New Zealand. Machado-Pereira was one of six offenders involved in the importation of cocaine from South America via New Zealand to Australia. He was convicted for his involvement in one of the importations. The appeal challenged both the severity of the sentence and the imposition of the minimum period of imprisonment.

The legal issues before the Court were whether the sentence of 11 years’ imprisonment was appropriate and whether the imposition of a 50% minimum period of imprisonment was justified. The Court examined the sentencing principles relevant to drug importation offences, the role of personal mitigation in such cases, and the need for consistency in sentencing among co-offenders.

The Court found that while the sentence of 11 years’ imprisonment was not manifestly excessive, the imposition of a 50% minimum period of imprisonment was not justified. The Court considered Machado-Pereira’s role in the importation, which was limited to one instance and involved a smaller quantity of drugs compared to his co-defendants. Given that none of the other offenders, including the organisers, were subject to a minimum period of imprisonment, the Court held that Machado-Pereira’s sentence was disproportionate. Furthermore, the Court found that Machado-Pereira’s personal circumstances did not warrant a departure from the established sentencing principles for drug importation offences, which prioritize deterrence over personal mitigation.

The Court dismissed the appeal against the 11-year sentence but allowed the appeal against the imposition of the 50% minimum period of imprisonment, quashing the order. The reasoning was that while Machado-Pereira’s sentence was within the appropriate range, the minimum period of imprisonment did not align with the Court’s assessment of his role and the sentencing of his co-offenders.

Orders