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,…

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 R v Kawerau

Details

AGLC: R v Kawerau [2009] NZCA 75
Case: [2009] NZCA 75
Decision Date: 12 March 2009

CaseChat Overview and Summary

In the case of R v Kawerau, Michael Paul Kawerau appealed against his sentence of two years and four months' imprisonment for manufacturing methamphetamine, arguing that it was manifestly excessive. The appeal was heard by the Court of Appeal of New Zealand, consisting of Arnold, Ronald Young, and Venning JJ. The appellant's counsel argued that the sentence was excessive due to factual errors made by the Judge, an overly high uplift for personal aggravating factors, and inadequate consideration of mitigating factors. The Crown accepted that there were errors but argued that the sentence was still within the appropriate range.

The Court of Appeal considered the factual errors made by the sentencing Judge, including the mistaken belief that the appellant had been manufacturing methamphetamine for four years, rather than using it. However, the Court concluded that these errors did not lead to an excessive sentence. The Court also addressed the appellant's argument regarding the uplift for personal aggravating factors and the discount for mitigating factors, concluding that the Judge had appropriately considered these factors in sentencing. The Court reassessed the sentence based on the circumstances of the case and found that the final sentence of two years and four months' imprisonment was appropriate.

The Court of Appeal dismissed the appeal against sentence, confirming that the sentence imposed on the appellant was appropriate for the offending after taking account of his personal circumstances. The factual errors and other factors raised by the appellant did not lead to an excessive sentence being imposed. The final orders of the Court were that the appeal against sentence was dismissed.

Orders