Mack v R

[2013] NZCA 183

IN THE COURT OF APPEAL OF NEW ZEALAND

CA802/2012
[2013] NZCA 183

BETWEEN	WARWICK JOSEPH MACK Appellant
AND	THE QUEEN Respondent

Court:

Harrison, Stevens and Wild JJ

Counsel:

Appellant in person
M E Ball for Respondent

Judgment:

(On the papers)

30 May 2013 at 10.30 am

JUDGMENT OF THE COURT

AThe appeal against sentence is allowed to the extent that the minimum period of imprisonment of five years and nine months on count 1 is quashed and a minimum period of imprisonment of four years and eleven months is substituted.

BAll other sentences including their cumulative and concurrent effect are confirmed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Introduction

1. The appellant was sentenced by Lang J for serious drug offending to a total of 11 years, six months imprisonment.[1]  For present purposes the key parts are on count 1 (a charge of manufacturing methamphetamine), a sentence of nine years imprisonment with a minimum period of imprisonment of five years and nine months.  On count 11 (manufacturing methamphetamine), a sentence of two and a half years imprisonment to be served cumulatively on the sentence imposed on count 1.

   [1]R v Mack HC Auckland CRI-2009-090-11944, 15 July 2011.

2. As a result of the operation of the provisions of the Parole Act 2002 the total non-parole period has been calculated as six years, seven months.  This appeal is advanced on the basis that the Judge overlooked the manner in which non-parole periods are calculated under s 84 of the Parole Act and, as a result, imposed an effective minimum period of imprisonment on the lead charge that was in excess of what he intended.

3. Both parties have consented to the appeal being heard on the papers.

Background

1. The appellant was sentenced by Lang J to the sentences described above.  He was also sentenced on 18 other drug related charges.  On the remaining counts concurrent sentences were imposed.

2. When dealing with the issue of whether a minimum period of imprisonment should be imposed[2] Lang J said:

   [57]     ...  It has now become relatively commonplace, in cases involving serious drug offending, for the sentencing Judge to require an offender to serve around one half of the overall sentence before being eligible to apply for parole.

   …

   [59]     I do not consider that the purposes and principles of sentencing, and more particularly those set out in s 86(2) of the Sentencing Act 2002, would be met without the imposition of a minimum term.  I consider that an appropriate minimum term to be imposed on the lead charge, that is of manufacturing methamphetamine at Gum Road, is one of five years nine months’ imprisonment.

   [2]Under s 86(2) of the Sentencing Act 2002.

3. Lang J did not impose a minimum period of imprisonment in respect of count 11 (the cumulative charge).

The effect of these sentences

1. The effect of the above combination of sentences for eligibility for parole purposes must be ascertained under the provisions of the Parole Act.

2. Section 84(2) of the Parole Act provides that the non-parole period of a sentence in respect of which the court has imposed a minimum term of imprisonment is the minimum term imposed.

3. So far as the sentence on count 11 is concerned, s 84(1) of the Parole Act provides that where the Court does not impose a minimum period of imprisonment the non-parole period will be one-third of the length of the sentence (in this case, 10 months).

4. Section 84(4) provides that the non-parole period of a long-term notional single sentence is the total obtained by adding together all the non-parole periods of every sentence that makes up the notional single sentence.[3]  Therefore, in this case the total non-parole period arising from the appellant’s combination of sentences (with minimum and non-parole periods) was six years, seven months (ie five years, nine months plus ten months).

The appeal against sentence

[3]The effect and operation of s 84 of the Sentencing Act was discussed by this Court in Van Wakeren v R [2011] NZCA 503 at [81]–[87].

1. The appellant submits that Lang J’s intention was to impose a minimum period of imprisonment of around 50 per cent of the overall sentence (that is, five years, nine months imprisonment).  He submits that the Judge inadvertently overlooked the effect of s 84 and therefore imposed a minimum term of imprisonment that was in excess of what was intended.  As a result of this oversight, the appellant’s non-parole period has been extended by ten months.

2. For the respondent, Ms Ball accepts that there is “clear merit” in this appeal.  She has raised the possibility of the case being remitted back to Lang J pursuant to s 385(3)(c) of the Crimes Act 1961 to clarify the basis on which the minimum period of imprisonment was imposed.

3. Ms Ball suggests that it would then be open to Lang J either to confirm that the sentence as it stands is correct, or to amend the sentence so that the final non-parole period is 50 per cent of the overall term.  She describes different ways in which the sentence could be constructed.

Discussion

1. We consider that it is plain that Lang J’s intention was to require the appellant to serve 50 per cent of the overall sentence before being eligible to apply for parole.  That is because it was apparent from the Judge’s observations, set out above at [5], that he intended to impose an overall non-parole period of one half of around the overall sentence in order to achieve parity with other cases involving serious drug offending.

2. Due to the operation of the Act, however, the final effect of Lang J’s decision was to impose an effective non-parole period of six years, seven months.  This amounts to 57 per cent of the overall sentence.  We are satisfied that this outcome is plainly not consistent with the Judge’s expressed intention.

3. For this reason, we allow the appeal and quash the sentence imposed by Lang J on count 1.[4]  In its place a sentence of nine years’ imprisonment with a minimum period of imprisonment of four years, eleven months is substituted. The sentences on the remaining counts are unchanged including their cumulative and concurrent effect.

   [4]We note that this Court has previously seen fit to amend sentences in order to correct errors of this nature:  see Maihi v R [2013] NZCA 69.

4. By the operation of s 84 of the Parole Act the effect of this substitution is that the appellant’s total non-parole period will be five years, nine months.

Solicitors:
Crown Law Office, Wellington for Respondent