Makara v The Queen

[2012] NZCA 499

IN THE COURT OF APPEAL OF NEW ZEALAND

CA337/2012
[2012] NZCA 499

BETWEEN  TAMATI DAMIAN MAKARA
Appellant

AND  THE QUEEN
Respondent

Hearing:         29 October 2012

Court:             Harrison, Chisholm and Ronald Young JJ

Counsel:         W D McKean for Appellant
M D Downs for Respondent

Judgment:      29 October 2012

ORAL JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

1. Mr Makara pleaded guilty to supplying cannabis, possession of cannabis for supply and manufacturing cannabis oil.  The appellant says that the ultimate sentence of two years and eight months’ imprisonment was manifestly excessive because insufficient credit was given for significant mitigating factors and Judge John D McDonald (the sentencing Judge) should not have uplifted the sentence for manufacturing cannabis oil when there was no evidence it was for sale.[1]

Facts

[1]     R v Makara DC Whangarei CRI-2011-088-4347, 31 May 2012.

1. On 12 October 2011 the Police executed a search warrant at a house in Whangarei.  The appellant lived there with his young family.  The Police found tin foil, drug scales, cannabis bongs and pipes, cannabis in clear snap lock plastic bags and a metal tin containing five cannabis tinnies.

2. The appellant admitted growing cannabis in bulk and selling it as $20 tinnies.  He said he had been selling for four years and for the last two years he had been selling about 30 tinnies a week.

3. During the search the Police also located a metal bowl containing a small amount of cannabis oil in which the appellant said he had attempted to make cannabis oil using isopropyl acetate.

District Court

1. The Judge took into account the fact that this involved the sale of hundreds of tinnies involving somewhere over $30,000 per annum turnover.  The Judge considered that the appellant’s offending fell within category two of R v Terewi and that a start sentence,[2] for the lead offence of selling cannabis, of three years and three months’ imprisonment was appropriate.  He did not consider there was any justification for an uplift for the possession of the five cannabis tinnies actually found on the premises but uplifted the start sentence by three months for the manufacturing of cannabis oil.

   [2]     R v Terewi [1999] 3 NZLR 62 (CA).

2. The Judge said that he was urged to consider a substantial discount for factual and personal mitigation so that the final sentence was reduced below two years’ imprisonment and home detention could be imposed.

3. The Judge gave a discount of 20 per cent for the appellant’s guilty plea.  In addition he gave a further five per cent discount for the appellant’s co‑operation with the Police, claimed remorse and the assessment by the probation officer that the appellant was at moderate to low risk of re‑offending.  That, therefore, reduced the final sentence to one of two years and eight months’ imprisonment.

Discussion

1. The appellant submits that there should have been no uplift for the manufacturing cannabis oil count.  A small amount of cannabis oil that was produced had remained in the bowl.  There was no suggestion, the appellant said, that this was for commercial purposes and, therefore, the manufacturing charge did not warrant a separate uplift of three months from the start sentence.

2. The appellant submitted that a full 25 per cent deduction for his guilty plea should have been given because he had effectively pleaded guilty at the earliest opportunity.  Although there was two months between his first appearance and his guilty plea, this was taken up with obtaining the services of counsel and obtaining disclosure from the Police.

3. A further deduction for remorse should have been given because of the appellant’s guilty plea, the probation officer’s view that he was remorseful, the fact that the appellant had been completely open and honest with the Police about his offending, and he had written a letter expressing his remorse.

4. As to the 20 per cent reduction for the appellant’s guilty plea, we accept that the plea was made relatively early.  However, that is only one of a number of factors identified as relevant by the Supreme Court in Hessell v R.[3]  Here, the Crown case was very strong.  It relied upon the appellant’s extensive admissions.  Further, the appellant’s guilty plea was delayed by requests for further Police disclosure.  It was not, therefore, an immediate admission of guilt.  A letter expressing remorse is often sent before sentencing.  Something more was required here to justify a further discount.

   [3]     Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.

5. The appellant says that he should have had further reductions for his assistance to Police, given he had admitted the full extent of his offending, and that at 24 years of age he had no previous convictions, that he had taken steps to obtain employment and was motivated to seek assistance.  The appellant says there should have been at least a 33 per cent deduction for all of his relevant mitigation (including his guilty plea).

6. This Court has made it clear[4] that discounts for personal circumstances in drug dealing cases are less important than the need for deterrence.  Generally reductions for personal circumstances are modest.  Here, some deduction for personal circumstances was given.  Nothing further was required.  This was long term commercial drug dealing involving a turnover of at least $30,000 per year for the last two years.  Deterrence and denunciation required a sentence of imprisonment.  The final sentence imposed cannot be said to be manifestly excessive.

Result

[4]   Smeath v R [2012] NZCA 466 at [12]; Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174]; and Baird v R [2012] NZCA 430 at [67] citing the Supreme Court’s decision in R v   Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12] and [14].

1. We are satisfied, for the reasons given, the appeal should be dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent