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

1. 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).

2. 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.

3. 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.

4. 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. 

5. 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

1. 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.  The jury rejected your explanation and it is clear now from what you have told the probation officer, that you accept the Crown allegation.

2. For the purposes of sentencing, Judge Collins concluded that, conservatively, Mr Makanesi had dealt in at least 500 grams of methamphetamine. The Judge observed as follows:[2]

   … on any view, you were a substantial commercial retailer of methamphetamine.  For that, and for the damage you have done by introducing this dangerous drug into the community, the consequences for you are severe.  The damage methamphetamine causes is well understood and you understood that, by the way you operated.

   [2]At [8].

3. In imposing a minimum period of imprisonment Judge Collins noted as follows:[3]

   I need to consider the question of a minimum period of imprisonment and I need to go back and once again consider the principles of accountability, denunciation, deterrence and protection of the community.  What I have to decide is whether the availability of parole at one third of your sentence would be an adequate response to what you have done in this case.

   You were a very significant dealer in methamphetamine and in my view the absence of a minimum period of imprisonment higher than that which would otherwise apply, would simply not be an adequate response.  In other words, the need in your case for accountability, denunciation, deterrence and protection of the community is such that a minimum period of imprisonment is required and I set that at 50 per cent of the sentence and that will be a minimum period of imprisonment of five and a half years.

Analysis

[3]At [11]–[12].

1. Relevantly, s 86 of the Sentencing Act 2002 provides as follows:

   86       Imposition of minimum period of imprisonment in relation to determinate sentence of imprisonment

   …

   (2)The court may impose a minimum period of imprisonment that is longer than the period otherwise applicable under section 84(1) of the Parole Act 2002 if it is satisfied that that period is insufficient for all or any of the following purposes:

   (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.

…

1. The minimum period of imprisonment appropriate in any given case is a matter for the discretion of the sentencing judge.  It falls to be assessed on the facts of each case and in light of the statutory considerations.[4]  The criteria in s 86(2) will almost invariably be made out in cases of very serious drug offending.[5]

   [4]R v Wang [2009] NZCA 118 at [14].

   [5]R v Aram [2007] NZCA 328 at [78]; R v Anslow CA182/05, 18 November 2005 at [27] and [30].

2. Mr Wimsett did not challenge the sentence of 11 years’ imprisonment.  Further he acknowledged that denunciation and deterrence are of primary importance in sentencing for serious drug-related offending.  He nevertheless submitted that the minimum period of 50 per cent of the end sentence imposed by Judge Collins was “automatically” adopted, with little analysis as to why that period was appropriate.  He argued that Mr Makanesi’s offending, while serious, did not involve other aggravating features such that a minimum period of 50 per cent of the end sentence was required.  He also argued that Mr Makanesi has no convictions for previous drug-related offending and that the offending happened over a short period of some three to four months.

3. We are not persuaded that Judge Collins erred in his consideration of the relevant factors.  He considered that Mr Makanesi played a not insignificant role in serious drug related offending.  He concluded that Mr Makanesi was a very significant dealer in methamphetamine, notwithstanding that he took a conservative estimate of the amount of the drug involved for sentencing purposes.  He took the view that parole after one-third of the finite sentence imposed would not be an adequate response to the offending. He emphasised the principles of accountability, denunciation, deterrence and protection of the community, all of which are seminal in sentencing for drug-related offending, and all of which require consideration when imposing a minimum period of imprisonment. 

4. While no mitigating features were referred to by the Judge in imposing the minimum term, he had earlier decided that there were no such factors.  He considered that the remorse expressed by Mr Makanesi was not genuine.  Rather he considered that Mr Makanesi regretted the circumstances in which he found himself, and the effect his imprisonment would have on his partner and family.  The Judge also referred to Mr Makanesi’s positive involvement in the community, but considered that it did not warrant a discount in the circumstances.  That conclusion was open to him.

5. We do not consider that the fact that Mr Makanesi has no prior convictions for drug-related offending, and that the offending took place over a relatively short period, affects the matter.  While Mr Makanesi has not previously been involved in drug related offending, he does have a number of prior convictions.  The scale of the offending here in issue trumps its relatively short duration, and in any event offending of this type over a period of months is significant in itself.  Mr Makanesi was not involved in a “one off” possession or supply. 

6. There is nothing to suggest that Judge Collins erred in his approach.  Nor can it be said that the minimum period of imprisonment imposed was manifestly excessive in the circumstances of this offending.

Result

1. An extension of time to appeal is granted.

2. The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent