Makara v The Queen - [2012] NZCA 499

IN THE COURT OF APPEAL OF NEW ZEALAND

CA337/2012
[2012] NZCA 499

BETWEEN TAMATI DAMIAN MAKARA
Appellant

AND THE QUEEN
Respondent

Hearing: 29 October 2012

Court: Harrison, Chisholm and Ronald Young JJ

Counsel: W D McKean for Appellant
M D Downs for Respondent

Judgment: 29 October 2012

ORAL JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

Mr Makara pleaded guilty to supplying cannabis, possession of cannabis for supply and manufacturing cannabis oil. The appellant says that the ultimate sentence of two years and eight months’ imprisonment was manifestly excessive because insufficient credit was given for significant mitigating factors and Judge John D McDonald (the sentencing Judge) should not have uplifted the sentence for manufacturing cannabis oil when there was no evidence it was for sale.[1]

Facts

[1] R v Makara DC Whangarei CRI-2011-088-4347, 31 May 2012.

On 12 October 2011 the Police executed a search warrant at a house in Whangarei. The appellant lived there with his young family. The Police found tin foil, drug scales, cannabis bongs and pipes, cannabis in clear snap lock plastic bags and a metal tin containing five cannabis tinnies.
The appellant admitted growing cannabis in bulk and selling it as $20 tinnies. He said he had been selling for four years and for the last two years he had been selling about 30 tinnies a week.
During the search the Police also located a metal bowl containing a small amount of cannabis oil in which the appellant said he had attempted to make cannabis oil using isopropyl acetate.

District Court

The Judge took into account the fact that this involved the sale of hundreds of tinnies involving somewhere over $30,000 per annum turnover. The Judge considered that the appellant’s offending fell within category two of R v Terewi and that a start sentence,[2] for the lead offence of selling cannabis, of three years and three months’ imprisonment was appropriate. He did not consider there was any justification for an uplift for the possession of the five cannabis tinnies actually found on the premises but uplifted the start sentence by three months for the manufacturing of cannabis oil.
[2] R v Terewi [1999] 3 NZLR 62 (CA).
The Judge said that he was urged to consider a substantial discount for factual and personal mitigation so that the final sentence was reduced below two years’ imprisonment and home detention could be imposed.
The Judge gave a discount of 20 per cent for the appellant’s guilty plea. In addition he gave a further five per cent discount for the appellant’s co‑operation with the Police, claimed remorse and the assessment by the probation officer that the appellant was at moderate to low risk of re‑offending. That, therefore, reduced the final sentence to one of two years and eight months’ imprisonment.

Discussion

The appellant submits that there should have been no uplift for the manufacturing cannabis oil count. A small amount of cannabis oil that was…

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 Makara v The Queen

Details

AGLC: Makara v The Queen [2012] NZCA 499
Case: [2012] NZCA 499
Decision Date: 29 October 2012

CaseChat Overview and Summary

In the case of Makara v The Queen, the appellant, Tamati Damian Makara, appealed against his sentence of two years and eight months’ imprisonment, contending that it was manifestly excessive. The appeal was heard by Harrison, Chisholm, and Ronald Young JJ in the Court of Appeal of New Zealand. The appellant pleaded guilty to supplying cannabis, possession of cannabis for supply, and manufacturing cannabis oil. The court was required to determine whether the sentence imposed was appropriate and whether the sentencing judge had correctly applied the relevant principles in discounting the sentence for mitigating factors and in considering the uplift for manufacturing cannabis oil.

The court examined whether the sentencing judge had erred in not giving a greater discount for the appellant's guilty plea, co-operation with the police, and remorse. The court found that while the plea was made relatively early, the Crown case was strong, and the appellant's plea was delayed by requests for further police disclosure. Additionally, the court noted that personal circumstances in drug dealing cases are generally less important than the need for deterrence. The court concluded that the sentencing judge appropriately considered the appellant's mitigating factors and that the sentence imposed was not manifestly excessive. The appeal was dismissed, and the original sentence was upheld.

The court's reasoning focused on the need for deterrence in drug dealing cases and the substantial nature of the appellant's offending, which involved significant commercial activity. The court emphasised that while some discount for personal circumstances was appropriate, it should not overshadow the necessity for a sentence that serves to deter similar criminal activities in the future. The final orders of the court confirmed the dismissal of the appeal and the maintenance of the original sentence.

Orders