The Queen v Motu James Mataa

[2003] NZCA 228

IN THE COURT OF APPEAL OF NEW ZEALAND

CA174/03

THE QUEEN

v

MOTU JAMES MATAA

Hearing:22 September 2003

Coram:Anderson J
Rodney Hansen J
Salmon J

Appearances:  C J Tennet for Appellant

K Raftery for Crown

Judgment:25 September 2003 

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

Nature of the appeal

[1]       This is an appeal against a sentence of seven and a half years imprisonment in respect of one count of conspiring to supply the Class B controlled drug known as Ecstasy, on which the appellant was found guilty by a jury, and two counts of money laundering, one of cultivation of cannabis and one of possession of cannabis for sale, in respect of which the appellant pleaded guilty at the conclusion of the Crown case at trial. 

[2]       The Crown case was that the appellant was at the hub of a “wheel” conspiracy to supply Ecstasy to sub-dealers who included Kirk Harcourt, David Price, and Alastair Knight.  The sub-dealers would then distribute to others who would on-sell or consume for themselves.  The evidence relating to the appellant’s cannabis offences related to a sophisticated and successful hydroponic operation as well as possession of almost four kilograms of harvested plant, about half of which was head material.  The value of the cannabis was estimated at about $16,000.  The money laundering transactions related to $40,800 dispersed through the appellant’s sports retail business and $27,900 from Ecstasy sales laundered through a TAB account.  An estimated 800 Ecstasy tablets, worth some $50,000, were turned over by the appellant in the course of his offending.

[3]       At the age of 29 Mr Mataa came before the Court as a first offender with impressive testimonials from a number of people, particularly those concerned with his sporting activities.  He is an accomplished sportsman who has gained New Zealand, New Zealand Maori, and South Pacific championship titles in the sport of surfing, at which he has achieved very high world rankings in the past.  He also excels at snowboarding and kick boxing.  His offending appears to have been driven by a desire for money to fund his business and his sporting activities.

[4]       Mr Mataa’s pre-sentence report indicates a level of insight which seems not to have informed his decision how or when to plead to the charges he faced.  He does not however accept responsibility for the major offending.  His risk of reoffending is considered to be low.

Reasons for sentence

[5]       The Judge noted that the conspiracy to supply Ecstasy fell within the second category of R v Wallace and Christie (1999) 16 CRNZ 443, indicating a starting point of five to eight years, and the cannabis offending fell near the upper end of category 2 or the lower end of category 3 of R v Terewi [1999] 3 NZLR 62, indicating a starting point of between three and four years imprisonment. The Judge noted that little credit could be given for the pleas of guilty which were entered in the course of trial and apparently for the tactical purpose of supporting a submission that the relevant drug dealing by the appellant was in respect of Class C, not Class B drugs. The degree of family support and personal achievement was acknowledged and the need to have regard to the principle of totality of sentencing was borne in mind by the Judge. In the result he concluded that an overall sentence of seven and a half years imprisonment should be imposed and that was constructed in the following way: for the Class B conspiracy, count 1, six years imprisonment; for money laundering in respect of the $27,900, count 2, two years imprisonment; for cultivating cannabis, count 3, one year six months imprisonment; for being in possession of cannabis for the purpose of sale, count 4, one year and six months imprisonment; for money laundering in respect of the $40,883, count 6, three years imprisonment. The sentences for conspiracy and money laundering were concurrent with each other and the sentences in respect of cannabis were concurrent with each other but cumulative on the six years for count 1.

Submissions for appellant

[6]       In this Court Mr Tennet, who did not appear in the lower Court, submitted that the sentence of seven and a half years in total and the sentence of six years as a component, were each manifestly excessive or inappropriate; and the accumulation of the two 18 month sentences was wrong in principle or resulted in manifest excess.  Further, in counsel’s submission, there was an unjust disparity between the sentence imposed on Mr Mataa and other persons sentenced in connection with the same general offending.

[7]       In support of his general submissions Mr Tennet argued that the sentencing Judge paid insufficient regard to the principle of sentencing enunciated in s8(g) of the Sentencing Act 2002, that the Court must impose the least restrictive outcome that is appropriate in the circumstances.  He also invoked ss8(a) and (e) which require the Court to take into account the gravity of the offending in the particular case, including the degree of culpability of the offender, and must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances.  Counsel also submitted that the sentencing Judge failed to place sufficient weight on or give sufficient credit for Mr Mataa’s personal circumstances and ultimately gave insufficient recognition to or inadequately applied the principle of totality of sentencing.

[8]       As a suggested criterion for assessing Mr Mataa’s culpability, Mr Tennet referred to the sentences imposed by the High Court at Napier, on 22 August 2003, in R v Martin and McHardy.  In that case the Judge adopted a starting point in the range of eleven to twelve years and reduced this to nine years imprisonment for manufacturing Ecstasy and a form of Methamphetamine in relation to what may be the largest Ecstasy manufacturing laboratory so far detected in New Zealand.

[9]       As to relevant co-offenders, Mr Tennet pointed to a sentence of four years three months imprisonment imposed in respect of David Price who was described as having had a close involvement organisationally and as a dealer and who had pleaded guilty to one count of money laundering, one count of possessing Ecstasy for supply and one count of conspiracy to supply Ecstasy.  Kirk Harcourt, who was found guilty on one count of possessing Ecstasy for supply and who pleaded guilty at the end of the Crown case to one count of conspiracy to supply Ecstasy and one count of money laundering, received a sentence of three years imprisonment.

[10]     At a later stage the same Judge sentenced Alastair Knight, who had pleaded guilty on arraignment, to one count of conspiring to supply the Class B controlled drug, one count of supplying it and one count of money laundering.  The Judge regarded that offender’s involvement as less than the present appellant’s and “much the same as Mr Price”.  Adopting a starting point of five years imprisonment and discounting it by one year for the guilty pleas, the Judge imposed a sentence of four years imprisonment.

Crown submissions

[11]     The Crown emphasised the different levels of culpability assessed by the Judge who presided over the trial of three, and the sentencing of four, associated offenders.  In counsel’s submission there was not a disparity which would lead a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders to think that something had gone wrong with the administration of justice – R v Lawson [1982] 2 NZLR 219, at 223.

[12]     Mr Raftery pointed out that the disparity in sentence of all the offenders otherwise than for the cannabis crimes committed only by Mr Mataa, was no more than two years and that was explicable on the basis of the differing degrees of organisational significance and participation by the various participants.  There were also variations in relation to guilty pleas, Mr Knight in particular having had the benefit of a much earlier plea.  In respect of the money laundering charge, count 2, both Mr Knight and Mr Mataa received the same sentence of two years imprisonment.

[13]     In counsel’s submission, the cannabis offending was significant and separate from the other offending, thereby justifying not only a distinction between the general co-offenders but also a cumulative sentence in terms of conventional sentencing principles.  Counsel submitted there was nothing in the provisions of the Sentencing Act invoked on behalf of the appellant which lent support to the appellant’s arguments.  To the extent that the Judge could have regard to personal circumstances, Mr Mataa’s situation was taken into account.

Discussion

[14]     The sentencing Judge was in the best position to evaluate the respective roles and culpability of the participants in the conspiracy.  He put the appellant at the hub of a wheel conspiracy with the next most culpable participant, Mr Knight, taking a lesser role.  The differences in culpability, combinations of charges and timing of guilty pleas plainly warrant variations in the sentences imposed on the different offenders. 

[15]     Nor could it be properly held that the six year component of the sentence, which embraced the offending other than for cannabis, was inappropriate in view of R v Wallace and Christie; nor that a discrete evaluation of culpability for the cannabis offending would not be at least within the three to four year range indicated by R v Terewi.  Little credit could be allowed for the late, essentially tactical, guilty pleas.

[16]     We do not regard R v Martin and McHardy as a case which assists the appellant.  The starting point in that case was in the range of eleven to twelve years whereas the sentence imposed here following a defended trial was six years.  Whilst the quantity of proscribed drug will be an important consideration other factors are relevant including, in the present case, the duration and extent of offending.  We think, with respect to Mr Tennet, that the strongest argument is that the sentence is manifestly excessive having regard to the principle of totality.  Although the cannabis offending distinguished Mr Mataa from the co-offenders it was, in relation to him, one element of general drug dealing activity and when so viewed allows more scope for an argument of overall excess.

[17]     But ultimately it is not for this Court to quash a sentence merely because it may have imposed a lesser sentence if it were invested with the primary responsibility in that behalf.  This Court must be satisfied that a sentence is manifestly excessive, clearly inappropriate or wrong in principle before it is entitled to interfere.  In the present case, the sentence could scarcely have been much higher without warranting appellate review but in the result we consider that it falls just within a permissible range in the particular circumstances.  Viewed overall, the offending was persistent, well planned, deliberately undertaken for financial gain as a chosen business activity, and substantially involving a pernicious Class B drug.  Although it is regrettable that a man of otherwise admirable qualities and potential should have corrupted his life in the way he has, there is limited room for personal circumstances to mitigate culpability for the business of serious drug dealing.

[18]     For these reasons the appeal is dismissed.

Solicitors:
Crown Solicitors, Auckland