Malamatenios v R
[2013] NZCA 347
•8 August 2013 at 10.00 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA196/2013 [2013] NZCA 347 |
| BETWEEN | NIKOS MALAMATENIOS |
| AND | THE QUEEN |
| Hearing: | 30 July 2013 |
Court: | Stevens, Panckhurst and Ronald Young JJ |
Counsel: | M N Pecotic for Appellant |
Judgment: | 8 August 2013 at 10.00 am |
JUDGMENT OF THE COURT
AThe appeal is allowed and the sentence of three years’ imprisonment is quashed.
BIn its place a sentence of two years, three months’ imprisonment is imposed on the two counts on which the appellant was convicted, to be served concurrently.
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REASONS OF THE COURT
(Given by Ronald Young J)
Introduction
At his trial by jury in December 2012 the appellant faced four counts. He was acquitted by the jury on a count of manufacturing methamphetamine. He was discharged by the Judge on a count of supplying methamphetamine but he was convicted on a count of possession of hydrochloric acid, acetone and pseudoephedrine with the intention they be used in the manufacture of methamphetamine[1] and convicted on a count of possession of a metal “Parr bomb”, glassware pumps and pH meters for the manufacture of methamphetamine.[2]
[1]Misuse of Drugs Act 1975, s 12A(2)(b).
[2]Misuse of Drugs Act, s 12A(2)(a).
He was sentenced to three years’ imprisonment.[3] The appellant says the starting point of two years’ imprisonment and the 12 month uplift for offending on bail and previous convictions were excessive and the Judge wrongly failed to give credit for mitigating circumstances, resulting in a manifestly excessive sentence.
Facts
[3]R v Malamatenios DC Auckland CRI-2008-090-3028, 27 March 2013.
Judge Gibson in the District Court at sentencing described the facts supporting the charge in this way:
[3] The facts are relatively straight‑forward; there was a search of a property at which you were living with your partner at 40 Hunters Road, Taupaki in November 2007. You were already at that time on bail for similar offences for which you have subsequently been convicted and sentenced to a term of home detention. At the address are various items, the subject of the counts were located, and the Clandestine Laboratory Response Team was called, and located these items and was able to identify them.
Some explanation of the term “Parr bomb” is necessary. A Parr bomb is a metal reaction vessel to which chemical ingredients are added and in which methamphetamine is manufactured. The reaction occurs under pressure within the “bomb”. The Crown case was that a Parr bomb had no known alternative use to manufacturing methamphetamine.
The respondent accepts that although count three alleged possession of hydrochloric acid, acetone and pseudoephedrine, there was no evidence of the presence of acetone at the appellant’s address.
Starting point too high?
The Judge at sentencing said:
[5] The Crown has referred me to Wilson v R where the starting point was three years but I think that was a more serious situation than that here because the precursors found had a value of around $100,000 and so I think three years is too severe as a starting point. The other starting point the Crown has referred me to for similar offending was one of two and a half years for a person found guilty of three counts of possessing precursor substances in the R v Johnston.
[6] Overall looking at the matter in the round and taking into account the nature of the material found, and the fact that there was some methamphetamine also in the parr bomb so that at some point it had clearly been used in the process of manufacturing methamphetamine, I have determined that a starting point for sentencing in your case is two years’ imprisonment.
We are satisfied that the starting sentence of two years’ imprisonment was within the range available to the Judge although at the top end.
Here, the appellant had possession of pseudoephedrine, the basic substance from which methamphetamine is manufactured. In addition, the appellant had the metal Parr bomb which, with the appropriate ingredients, was sufficient equipment to manufacture methamphetamine.
At sentencing, counsel for the Crown and appellant referred to a number of authorities[4] which all had their similarities and differences from the current set of facts. The appellant’s case is that the facts here are less serious than in Hodges v R and so the starting point here should be less than the 20 months imposed in that case.[5] An 18 month starting point was suggested.
[4]Police v Harvey HC Tauranga CRI‑2009-070-8644, 18 March 2010; R v Rawiri [2011] NZCA 244, (2011) 25 CRNZ 254; Wilson v R [2011] NZCA 197 and R v Johnston CA448/05, 16 May 2006.
[5]Hodges v R [2011] NZCA 580.
Mr Hodges appealed his sentence of 20 months’ imprisonment for possession of precursor materials and equipment intended to be used to manufacture methamphetamine and a charge of unlawfully getting into a motor vehicle. The appeal was based on a change in Mr Hodges’ circumstances justifying home detention. The 20 month sentence was, therefore, not the subject of direct challenge on appeal.
Here, Judge Gibson recognised that the facts in this case were not as serious as those in Wilson v R.[6] In Wilson the precursors, equipment and materials were considerably more extensive with significant commercial value. This Court rejected Mr Wilson’s submission that the starting point should have been two years, six months’ imprisonment:[7]
A starting point for the totality of Mr Wilson’s offending closer to the maximum term than three years’ imprisonment would have been justified.
[6]Above n 4.
[7]At [10].
The facts in Johnston have some similarity to the current facts.[8] Ms Johnston was found with bottles of hydrochloric acid, toluene and a two layered liquid with pseudoephedrine. Compared with this case there were chemicals but less equipment. This Court dismissed an appeal from a start sentence of two and a half years’ imprisonment.
[8]Above n 4.
We are satisfied that the starting sentence of two years’ imprisonment was within the range available.
Uplift for previous offending and offending on bail
As to the uplift, the Judge said:
[7] There needs to be an uplift in your case in respect to two matters the first is that the offending occurred while you were on bail for the other drug offences which I have already mentioned that to my mind justifies an uplift of six months. To be on bail for serious drug offences and then commit other serious drug offences is no small matter. I also have to take account of your previous convictions, they are not extensive but you have steadily accumulated convictions over the years, and an uplift of six months is also imposed for that.
Counsel for the appellant submits that the uplifts, resulting in total in a 50 per cent increase in the starting point, were excessive. Counsel accepted that, while an uplift was warranted for the offending on bail, three months would be adequate. As to an uplift for previous offending, counsel submitted that little, if any uplift was justified in the circumstances.
We do not consider the Judge adequately considered the circumstances of the appellant’s previous offending and the bail offending in concluding a 12 month uplift was justified. We therefore reconsider this aspect of the sentencing.
Because of the various delays in the appellant’s trial and the closeness in time between some of the offending, it is necessary to detail the chronology of relevant offending and convictions. The table below is based on a chronology of offending dates:
Offending
Date of offending
Date of conviction
3x possession of equipment to manufacture methamphetamine
7/09/2006
29/9/2011
1x possession of equipment to manufacture methamphetamine
4/10/2006
15/10/2008
2x possession of equipment and precursors (to manufacture methamphetamine) the subject of this appeal
26/11/2007
19/12/2012
The appellant was also convicted in 2009 relating to offending in 2009 which appears to have involved the possession of a methamphetamine pipe. We ignore this conviction for these purposes as comparatively minor offending.
As can be seen from the table, (assuming bail was granted shortly after the alleged offending date) the appellant was on bail for the September 2006 offending when he committed the October 2006 offending and certainly the November 2007 offending.
As to his previous convictions, the appellant had no relevant drug convictions when the offending began in September 2006 and indeed had no convictions when his offending of October 2006 and November 2007 occurred. By the time he was convicted of the current offending he had convictions for offending in September and October 2006. He received sentences of home detention and community work for this offending. The current offending was, therefore, the first time that the appellant had been sentenced to imprisonment.
This background informs the approach as to whether an uplift for offending on bail and for previous offending is justified. We are satisfied that an uplift for offending on bail is justified. The appellant had offended in a similar way in November 2007 when he was on bail and awaiting trial with respect to his 2006 offending. However, we do not consider the Judge’s six month uplift (a 25 per cent increase in the start sentence) can be justified. We consider a three month uplift adequately meets the circumstances of his offending while on bail.
As to the uplift for previous convictions, we do not consider any uplift was required in this case. The appellant does not have an extensive history of drug offending as we have shown. He has not previously been imprisoned for drug offending or indeed any offending.
Further, when he came to be sentenced in 2013 his offending had occurred more than five years previously. He had not been involved in any significant drug offending, therefore, for five years. These circumstances satisfy us that no uplift for previous offending is necessary in this case.
The appellant submitted that the Judge at sentencing wrongly failed to take into account the appellant’s circumstances in mitigation of sentence. The appellant pointed to the fact that in 2008/2009 he had undertaken a residential drug rehabilitation treatment at Capri Trust. He had subsequently obtained employment (although had to give it up for his trial) and had become a father. He had been on bail for a significant period awaiting trial.
It is difficult to assess the genuineness of the appellant’s claimed rehabilitation. His attendance at Capri House was some years ago. It is not clear from the background information we have that that programme was successful. No up to date tests were provided by the appellant to the Court to show he was drug free. The appellant was convicted of possession of utensils for drug use (probably a methamphetamine pipe) in 2009. He told the probation officer in early 2013 that he had “not consumed drugs in over a year”. He was in receipt of a sickness benefit when sentenced. The benefit was said to facilitate his drug counselling.
Finally, in the intervening period since his last drug offending, he has not remained crime free. He had criminal convictions in 2011 including one for receiving. We do not consider in these circumstances that any deduction for personal mitigating circumstances is justified.
In summary, therefore, we are satisfied the total uplift of one year was not justified and resulted in the imposition of a manifestly excessive sentence of three years’ imprisonment.
Result
We are satisfied that a proper uplift for offending on bail was three months’ imprisonment and we are satisfied that no uplift is justified for the appellant’s previous convictions. We therefore allow the appeal and quash the sentence of three years’ imprisonment. In its place a sentence of two years, three months’ imprisonment is imposed on the two counts on which the appellant was convicted, to be served concurrently.
Solicitors:
Crown Law Office, Wellington for Respondent
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