Makanesi v R - [2015] NZCA 134

IN THE COURT OF APPEAL OF NEW ZEALAND

CA326/2014
[2015] NZCA 134

BETWEEN	SIONE FEHOKO MAKANESI Appellant
AND	THE QUEEN Respondent

Hearing:	21 April 2015
Court:	White, Keane and Wylie JJ
Counsel:	S N B Wimsett for Appellant B D Tantrum for Respondent
Judgment:	29 April 2015 at 11.00 am

JUDGMENT OF THE COURT

AAn extension of time to appeal is granted.
BThe appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Wylie J)

Introduction

In September 2013 the appellant Mr Makanesi was found guilty by a jury of the following charges under the Misuse of Drugs Act 1975:
(a)Supplying a precursor substance contrary to s 12A(1)(b);
(b)Possession of methamphetamine for supply contrary to s 6(1)(f); and
(c)Supplying methamphetamine under s 6(1)(c).
On 5 December 2013 Mr Makanesi was sentenced to 11 years’ imprisonment with a minimum period of imprisonment of five years and six months.[1]
[1]R v Makanesi DC Auckland CRI-2011-004-19490, 5 December 2013.
Mr Makanesi filed a notice of appeal on 19 June 2014 and applied for an extension of time. The Crown did not oppose the application. We grant an extension of time because Mr Makanesi encountered difficulties in instructing a lawyer to pursue his appeal.
Mr Makanesi challenges the length of the minimum period of imprisonment. It is submitted by Mr Wimsett on his behalf that the minimum period of imprisonment is manifestly excessive, and that a minimum period of imprisonment in the range of four to four and a half years would adequately have met the goals of deterrence, denunciation, accountability and the protection of the community. Mr Tantrum for the Crown submitted that the minimum period of imprisonment is appropriate.
The sole question on appeal is whether or not it was open to the sentencing judge, Judge Collins, to conclude that delaying the possibility of release until after 50 per cent of the finite sentence had been served was an appropriate response to Mr Makanesi’s offending.

Sentencing decision

Judge Collins presided over the trial and he sentenced Mr Makanesi. In his sentencing notes, he recorded as follows:
[3] The facts really are quite simple. … Between April and August 2010 you arranged to meet with [a Ms Friis] on numerous occasions. Well in excess of 50 times arrangements were made to meet. Those arrangements were frequent, they were short notice. They were at all sorts of time of day and night. Generally it was to meet in car parks such as Burger King and Countdown and places like that.
[4] The Crown case was that on each occasion, you were arranging to meet to collect an ounce of methamphetamine which you were on supplying. The evidence was clearly, through intercepted text messages and phone calls, that those arrangements were made. Your defence at trial was not to deny the text messages or deny the phone calls and the volume and the arrangements. You simply said that on each occasion the arrangements were to be supplied cannabis plant rather than methamphetamine.…

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 Makanesi v R

Details

AGLC: Makanesi v R [2015] NZCA 134
Case: [2015] NZCA 134
Decision Date: 29 April 2015 at 11.00 am

CaseChat Overview and Summary

The case of Makanesi v R involved an appeal against the sentence imposed on the appellant, Sione Fehoke Makanesi, by the High Court at Auckland. Makanesi had been found guilty of supplying a precursor substance, possessing methamphetamine for supply, and supplying methamphetamine under the Misuse of Drugs Act 1975. The key issue before the Court of Appeal was whether the sentencing judge had erred in imposing a minimum period of imprisonment of five years and six months, which constituted 50% of the total 11-year sentence. The appellant argued that this minimum period was manifestly excessive, while the Crown maintained that the sentence was appropriate. The court examined whether it was open to the sentencing judge to conclude that delaying the possibility of release until after 50% of the finite sentence had been served was an appropriate response to the appellant’s offending.

The Court of Appeal considered the sentencing judge’s reasoning, which highlighted the appellant’s significant role as a dealer in methamphetamine, the frequency of the offending, and the damage caused by introducing the drug into the community. The court noted that the imposition of a minimum period of imprisonment is a matter of judicial discretion, assessed on the facts of each case and in light of statutory considerations. The Court held that the sentencing judge had appropriately considered the principles of accountability, denunciation, deterrence, and protection of the community. The court was not persuaded that the judge had erred in his approach or that the minimum period of imprisonment imposed was manifestly excessive. The appellant's lack of prior drug-related convictions and the relatively short duration of the offending did not affect the court’s decision, as the scale of the offending was significant.

The Court of Appeal granted an extension of time for the appeal to proceed and dismissed the appeal against the sentence. The reasoning and conclusion of the sentencing judge were upheld, affirming the appropriateness of the imposed minimum period of imprisonment.

Orders