R v Kawerau

[2009] NZCA 75

IN THE COURT OF APPEAL OF NEW ZEALAND

CA689/2008
[2009] NZCA 75

THE QUEEN

v

MICHAEL PAUL KAWERAU

Hearing:5 March 2009

Court:Arnold, Ronald Young and Venning JJ

Counsel:G R Tomlinson for Appellant

N P Chisnall for Crown

Judgment:12 March 2009 at 3.30 pm 

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Venning J)

Introduction

[1]       Michael Paul Kawerau pleaded guilty to one charge of manufacturing methamphetamine.  On 21 August 2008 he was sentenced by Gendall J in the High Court at Rotorua to two years four months’ imprisonment.  He now appeals against that sentence as manifestly excessive.

The parties’ cases

[2]       The appellant submits the sentence was manifestly excessive because:

(a)the Judge erred on a number of factual matters which affected the start point and diminished the credit Mr Kawerau was entitled to; 

(b)the six months’ uplift for the personal aggravating factors was too high; and

(c)the Court failed to follow the principles and process for sentencing outlined in R v Proctor [2007] NZCA 289 so that the discount for the mitigating factors other than the guilty plea was minimised.

[3]       The Crown accepts that the Judge was mistaken but submits the sentence was still within the range properly available.

The sentencing exercise

[4]       Gendall J recorded that on 21 May 2008 the appellant had produced methamphetamine at his home which he consumed himself.  The appellant had all the products necessary for the manufacture of methamphetamine there together with the necessary equipment.  The Judge referred to the sentencing bands for the manufacture of methamphetamine as identified by this Court in R v Fatu [2006] 2 NZLR 72 and noted that the appellant fell into Band 2 so that a start point of four to 11 years’ imprisonment was appropriate. The Judge then noted that, notwithstanding the general guidelines in Fatu, a start point below four years had been taken in a number of cases in the High Court where the manufacture was for personal use and there was no commerciality.  The Judge accepted that the appellant’s offending involved relatively low level manufacturing with no evidence of commercial gain.  He took as an appropriate start point a term of three years’ imprisonment.  He then uplifted that by six months for personal aggravating factors, including previous drug convictions.  Gendall J then gave the appellant what he described as a “significant” discount for the plea of guilty and other factors.  He fixed that at one third leading to the end sentence of imprisonment for two years four months.

[5]       Although home detention was not available, given the end sentence exceeded two years, the Judge went on to discuss the issue of home detention.  He concluded that given the appellant’s addiction there was a real prospect of drug offending through the use of some form of illegal drugs if the appellant was alone on home detention.  He also considered that a sentence of home detention would not properly meet the sentencing requirements and purposes (presumably, particularly, deterrence and denunciation).

The factual errors

[6]       As the Crown concedes, Mr Tomlinson is right.  The Judge was incorrectly of the view that the appellant had been manufacturing methamphetamine for a period of four years.  The evidence on the appellant’s admission was that he had been using, rather than manufacturing, methamphetamine for four years, although he acknowledged that he had made numerous attempts to manufacture methamphetamine.  But for the reasons that follow, nothing turns on that error.  Before returning to that issue we deal with the other points made for the appellant. 

[7]       Mr Tomlinson also submitted that the sentence was affected by the Judge’s mistaken impression the appellant was for sentence on the lesser charge of possession of equipment.  But the Judge became aware of that mistake at the end of the sentencing exercise.  As a result he declined to make an order for destruction of the equipment, pre-cursor materials and substances found in the appellant’s car.  The Judge also recorded that he had intended to impose a concurrent lesser term of imprisonment on that charge.  There is no suggestion in the course of the sentencing notes that, either in fixing the start point or the end sentence, the Judge had factored in that offending.  He did not refer to the issue of totality.  If the Judge had taken that offending into account in fixing the start point he would have addressed the matter when it was drawn to his attention before the sentencing process was completed.

[8]       Finally Mr Tomlinson criticised the Judge’s conclusion that the appellant had a network of suppliers who would target him.  The Judge’s reference to the appellant’s network was in the context of his consideration of home detention which was not relevant.  But, in any event, it was realistic for the Judge to have inferred that the appellant would have formed networks within the drug world given his long‑term addiction and that they might attempt to contact him. 

Uplift

[9]       Mr Tomlinson next criticised the uplift of six months.  An uplift for previous convictions was justified in this case.  The appellant had a number of previous convictions, including six for previous drug offending.  Section 9(1)(j) of the Sentencing Act 2002 required the Court to take into account the appellant’s previous convictions:  R v Filo [2007] NZCA 20. Importantly the appellant had a previous conviction for manufacturing a Class B drug. While the uplift of six months might be regarded as stern, given the length of time that had passed since the previous convictions for drug offending, it was tempered by the relatively low start point of three years taken by the Judge.

The discount

[10]     R v Proctor confirms the proper approach is to apply the discount for the guilty plea after all other personal aggravating and mitigating features have been taken into account.  In this case the Judge conflated the personal mitigating factors and the guilty plea, arriving at a total discount of one third.

[11]     But separating the two out does not assist the appellant in the circumstances of this case.  The appellant’s personal mitigating factors, apart from the guilty plea, were, frankly, limited.  We are unable to accept counsel’s submission that a discount of something in the order of six to eight months should have been given for them.  To the extent the appellant co-operated with the police by admitting the offending and accepted responsibility for it, the credit for that was reflected in the discount for the early guilty plea.  It is the early guilty plea and the acknowledgement of guilt in that formal way that is important.  The fact the appellant was in full-time employment and, in counsel’s submission was “attempting to turn his life around” and remain drug free was properly treated with a degree of caution by the Judge given the appellant’s admission he had been using methamphetamine for four years, was manufacturing for his own purposes, and had supplied his partner.  Also, the appellant was assessed by the probation officer as at a medium risk of reoffending.

Reassessment of sentence

[12]     In light of the Judge’s mistaken view as to the length of time that the appellant had been manufacturing methamphetamine we propose to reassess the sentence of the appellant in this case.  The starting point must be Fatu. This Court fixed a start point for manufacturing methamphetamine at four years’ imprisonment.  Despite that, in a number of cases where there has been no commerciality and the manufacturing has been for personal use, the High Court has adopted a start point under that prescribed level of four years.  For example, and restricting consideration to the cases referred to by Gendall J for sentencing the appellant, the following start points were taken:  R v Savelio HC AK CRI-2006-092-009147 2 April 2008 Cooper J three years nine months; R v Jones HC WHA CRI-2007-088-2320 16 November 2007 Allan J two years; R v Teague HC AK CRI-2005-004-5436 18 May 2007 Potter J three years nine months; R v Vowell HC WHA CRI-2006-088-3782 4 May 2007 Winkelmann J three years;  R v Woodhams HC AK CRI-2005-090-3399 7 April 2006 Frater J a range of three years to three years three months;  R v Boswell HC ROT CRI-2004-070-6882 30 November 2005 Allan J three years six months.  On the basis of those authorities and the circumstances of the offending in this case, a start point of between three years three months and three years six months was appropriate.  The Judge’s start point of three years was generous to the appellant.

[13]     Next, some uplift is required for the appellant’s previous convictions.  He has six convictions for previous drug offending, including the manufacture of a Class B drug.  Although the drug convictions are 10 years or more old, the appellant has offended in other ways during that 10-year period, including two convictions relating to unlawful possession of a firearm and a common assault (domestic).  An uplift in the order of three months is justified.  That leads to a start point, before taking account of personal mitigating factors, between three years six months to three years nine months.

[14]     As noted, the credit for the appellant’s personal mitigating factors must be limited if there is to be any credit at all.  A credit of one to two months might be available.  Applying a full discount of a third for the early guilty plea then leads to a final sentence in the range of two years three months to two years six months. 

Summary

[15]     Our review of the sentence imposed on the appellant confirms that the end sentence of two years four months was appropriate for the offending after taking account of Mr Kawerau’s personal circumstances.  The factual errors identified by the appellant and the other factors counsel referred to have not led to an excessive sentence being imposed on the appellant. 

Result

[16]     The appeal is dismissed.

Solicitors:

Gowing & Co, Whakatane for Appellant
Crown Law Office, Wellington