Malamatenios v R - [2013] NZCA 347

IN THE COURT OF APPEAL OF NEW ZEALAND

CA196/2013
[2013] NZCA 347

BETWEEN	NIKOS MALAMATENIOS Appellant
AND	THE QUEEN Respondent

Hearing:	30 July 2013
Court:	Stevens, Panckhurst and Ronald Young JJ
Counsel:	M N Pecotic for Appellant B D Tantrum and M J Hammer for Respondent
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…

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 Malamatenios v R

Details

AGLC: Malamatenios v R [2013] NZCA 347
Case: [2013] NZCA 347
Decision Date: 8 August 2013 at 10.00 am

CaseChat Overview and Summary

The appeal against the sentence imposed on the appellant, Nikos Malamatenios, was heard by the Court of Appeal of New Zealand. The appellant was convicted on two counts related to the possession of items with intent to manufacture methamphetamine and was sentenced to three years’ imprisonment. The appellant challenged the sentence as excessive, arguing that the starting point was too high, the uplift for offending on bail and previous convictions was excessive, and the Judge failed to take into account mitigating circumstances.

The legal issues before the Court were whether the starting point of two years’ imprisonment, the uplift for offending on bail and previous convictions, and the failure to consider mitigating circumstances were justified. The Court reviewed the authorities and the circumstances of the appellant’s previous offending and bail offending to determine if the sentence was within the range available to the Judge. The Court also considered the appellant’s submissions regarding mitigating circumstances and whether they warranted a deduction from the sentence.

The Court found that the starting sentence of two years’ imprisonment was within the range available to the Judge, although at the top end. However, the Court disagreed with the Judge’s determination that a 12-month uplift was justified for offending on bail and previous convictions. The Court found that a three-month uplift for offending on bail was appropriate, but no uplift was justified for previous convictions. The Court also found that no deduction for mitigating circumstances was warranted. The Court allowed the appeal and quashed the sentence of three years’ imprisonment, imposing a sentence of two years, three months’ imprisonment to be served concurrently on the two counts on which the appellant was convicted.

Orders