R v Lewenikurowai

[2007] NZCA 531

IN THE COURT OF APPEAL OF NEW ZEALAND

CA420/07
[2007] NZCA 531

THE QUEEN

v

NEUMI LEWENIKUROWAI

Hearing:12 November 2007

Court:Wilson, Chisholm and Potter JJ

Counsel:L P Iosefa for Appellant

H D M Lawry for Respondent

Judgment:22 November 2007 at 9.30am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Chisholm J)

[1]       Following trial by jury in the District Court at Christchurch, Mr Lewenikurowai was sentenced by Judge P A Moran to six years imprisonment for importing pseudoephedrine.  In addition concurrent sentences of six months imprisonment and three years imprisonment were imposed for importing cannabis and having possession of the pseudoephedrine tablets with the intention that they be used to manufacture methamphetamine respectively.  The Judge ordered Mr Lewenikurowai to serve a minimum of four years imprisonment. 

[2]       This is an appeal against both the length of the term of the prison sentence and the minimum non-parole period.  It is alleged that both are excessive.

Background 

[3]       Mr Lewenikurowai is a Fijian national.  Three months after being deported from New Zealand to Fiji on 26 July 2006, he boarded a ship berthed at Suva and hid in the hold. 

[4]       During the voyage to New Zealand Mr Lewenikurowai was located, along with a backpack containing cannabis leaf and 13,500 pseudoephedrine tablets.  He was arrested when the ship berthed at Lyttelton on 1 November 2006.  While he acknowledged that the cannabis was his, he denied any knowledge of the bag containing the pseudoephedrine which had a potential street value of between $384,750 and $577,125.  

[5]       Mr Lewenikurowai is 37 years of age.  Before this offending he had been twice deported from New Zealand to Fiji.  The first deportation occurred after he had served a sentence of four and a half years imprisonment imposed in 1996 for aggravated robbery.  Using a false identity he returned to New Zealand in 2004.  The second deportation occurred after he had served a sentence of two years imprisonment for possession of a precursor substance and possession of methamphetamine. 

[6]       The current offences were committed while he was on bail granted by a Fijian court.  Apart from the New Zealand convictions the appellant also has a 1993 conviction in Fiji for possession of “dangerous drugs”.  The probation officer considered that there was a high risk of re-offending. 

Sentencing in the District Court

[7]       Judge Moran approached sentencing on the basis that the appellant was a courier carrying drugs with a significant street value “for other people”.  A degree of planning is reflected by the fact that the appellant had provisions, a cellphone and contacts within New Zealand, was noted by the Judge.  Judge Moran also noted that the offending involved illegal entry into New Zealand and that the pseudoephidrine was to be used for the manufacture of methamphetamine which is “a particularly harmful drug”.  In the Judge’s view there were no mitigating factors. 

[8]       Having referred to R v Ho HC AK CRI 2005-092-567 12 April 2005 Judge Moran arrived at a starting point of four years imprisonment on the lead charge of importing pseudoephedrine.  He then took into account the appellant’s previous convictions, noting that the 2006 conviction for which he was deported involved possession for supply of Ecstasy having a street value of between $64,000 and $84,000.  The Judge also took into account that Mr Lewenikurowai had refused to give information to the probation service and that he was “an incorrigible recidivist” who committed offences that are “dangerous to New Zealand citizens”.  In the end result the Judge increased the starting point by two years and arrived at a total sentence of six years imprisonment. 

[9]       With reference to the minimum non-parole period the Judge noted that the appellant would be eligible for parole after two years which he did not regard as sufficient:

… to hold you accountable for the harm you endeavoured to do to this community.  It is not sufficient to denounce your conduct.  It is not sufficient to deter you, stop you from doing it again and it is not sufficient to protect either the New Zealand community or the Fijian community. 

The minimum period of imprisonment of four years was then imposed.  

This appeal

[10]     While Mr Lewenikurowai’s counsel, Mr Iosefa, did not challenge the Judge’s starting point of four years for the lead offence, he submitted that the 50% increase was manifestly excessive.  He submitted that the Judge departed from the usual sentencing principles by adopting a purely punitive deterrent sentence which failed to take into account rehabilitative issues.  Mr Iosefa also submitted that the sentence of six years was out of step with sentences imposed for similar offending in R v Yu HC AK CRI 2007-004-15768 27 August 2007, R v Jiang HC AK CRI 2006-004-4381 16 March 2007, R v Ye HC AK CRI 2006-004-175 18 July 2006, R v Zhang HC AK CRI 2005-004-8357 15 September 2006, R v Wu HC AK CRI 2005-092-6711 27 September 2005 and R v Zhao HC AK CRI 2006-404-2922 27 June 2006. 

[11]     In relation to the minimum non-parole period Mr Iosefa submitted that the Judge had erred in principle by imposing a minimum term of imprisonment which was effectively based on the imposition of the maximum term available, namely, eight years imprisonment.  He argued that this approach was out of line with similar cases, particularly R v Ho, and that the Judge had failed to take into account that there was no prospect of the appellant receiving any “rehabilitative benefit” in New Zealand.  

Discussion

[12]     Despite Mr Iosefa’s careful argument, we have not been persuaded that either the total sentence of six years imprisonment or the minimum non-parole period of four years were manifestly excessive or otherwise inappropriate. 

[13]     As Mr Iosefa conceded, the starting point of four years imprisonment adopted by the Judge was within the range available.  Given that starting point, we have no difficulty in accepting that the appellant’s personal circumstances justified an uplift of two years.  His defiance of the deportation orders and his re-offending so soon after deportation for serious drug offending in this country justified a substantial increase above the starting point.  Once those factors, together with the multiple offending and the street value of the methamphetamine that could have been manufactured, are taken into account the sentence of six years imprisonment could not be regarded as manifestly excessive.  Nor was it out of line with the authorities cited by Mr Iosefa.

[14]     We also consider that a minimum non-parole period of four years was within the discretion available to the Judge.  Mr Iosefa’s argument that the maximum term of imprisonment available to the Court was eight years is flawed.  Apart from the charge of importing pseudoephedrine, there were two other charges, one of which carried a maximum sentence of eight years imprisonment and the other a maximum of five years.  In all the circumstances the Judge was entitled to take the view that release and deportation after two years would be insufficient to hold the appellant accountable for the harm that he had endeavoured to inflict or to drive home to the appellant that his conduct would not be tolerated by authorities in New Zealand. 

Result

[15]     The appeal against sentence is dismissed. 

Solicitors:
Crown Solicitor, Auckland for Respondent