HURA v R [2023] NZCA 7

HURA v R [2023] NZCA 7 [10 February 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA417/2022[2023] NZCA 7BETWEEN JAYDEAN RIIPIA HURAAppellantAND THE KINGRespondentCA418/2022BETWEEN MARK JAMES LANGAppellantAND THE KINGRespondentHearing: 23 November 2022Court: Goddard, Woolford and Fitzgerald JJCounsel: H G de Groot for AppellantsM B Smith for RespondentJudgment: 10 February 2023 at 11.00 amJUDGMENT OF THE COURTA The applications for extension of time to appeal are granted.B The appeals are allowed.C The minimum period of imprisonment imposed on each appellant is setaside.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)[1] In 2016 Mr Hura and Mr Lang pleaded guilty and were sentenced on chargesarising out of their involvement as "cooks" in a large-scale methamphetaminemanufacturing operation.[2] Mr Hura pleaded guilty to five charges of manufacturing methamphetamineand one charge of participating in an organised criminal group. On 22 April 2016 hewas sentenced by Lang J to 16 years and 8 months' imprisonment on each of themanufacturing charges.1 The Judge imposed a minimum period of imprisonment(MPI) of 50 per cent on those charges: Mr Hura was ordered to serve a minimum termof imprisonment of 8 years and 4 months.2[3] Mr Lang pleaded guilty to two charges of manufacturing methamphetamineand one charge of possessing equipment with intent that it be used in the manufactureof methamphetamine. On 16 August 2016 he was sentenced by Moore J to 14 yearsand 4 months' imprisonment on the manufacturing charges.3 A 50 per cent MPI wasimposed on the two manufacturing charges: he was ordered to serve a minimum termof 7 years and 2 months' imprisonment.[4] Neither Mr Hura nor Mr Lang appealed against their sentences at the time theywere imposed. Each now wishes to challenge one aspect of their sentence: theimposition of a 50 per cent MPI. In order to do so, they seek an extension of time toappeal, some six years after their respective sentencings.[5] The appellants submit that at the time they were sentenced, it was standardpractice for courts to impose a 50 per cent MPI in cases of serious drug offending.However since then, a Full Bench of this Court has confirmed that imposing an MPI1 R v Hura [2016] NZHC 777 (Hura sentencing notes). Mr Hura was sentenced to 4 years'imprisonment on the charge of participating in an organised criminal group. The sentences wereto be served concurrently2 Hura sentencing notes, above at [31].3 R v Lang [2016] NZHC 1899 (Lang sentencing notes). On the charge of possessing equipmentfor manufacture of methamphetamine, Mr Lang was sentenced to 3 years' imprisonment.The sentences were to be served concurrently.as a matter of routine is not consistent with s 86 of the Sentencing Act 2002.4 Rather,a reasoned analysis is required both in relation to the imposition of an MPI and itslength. The appellants say that imposition of an MPI was not justified in their cases.[6] We have concluded that despite the appellants' lengthy delay in pursuing anappeal, the merits of both appeals are strong. The delay by each appellant, and inparticular Mr Lang, in pursuing their appeal has to some extent been explained. It isin the interests of justice to extend the time for appealing against the MPIs that wereimposed, and to allow the appeals and set aside the MPIs. Our reasons for theseconclusions are set out below.Background[7] In July 2014 the New Zealand police began a large-scale covert investigationof an organised criminal group engaged in methamphetamine manufacturing anddistribution. The group was led by Mr Brownie Harding, a patched member of theHead Hunters motorcycle club. It was made up of patched members of theHead Hunters and several associates. Mr Harding sourced the equipment and rawmaterials, recruited the group's members, and co-ordinated the production anddistribution of the methamphetamine that was produced.[8] The methamphetamine was manufactured at an isolated rural address inNorthland. It was sold throughout the Auckland and Northland regions.[9] The surveillance conducted by the police revealed that between September andDecember 2014 six discrete manufacturing phases took place. There were at least fourcooks. They worked in shifts, manufacturing batches of methamphetamine. Moore Jdescribed the operation as "a methamphetamine factory operating at a highcommercial level".5 Estimates of the quantity of methamphetamine produced vary,but it appears to have been at least 6.5 kg.64 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [169].5 Lang sentencing notes, above n 3, at [11].6 R v Harding [2017] NZHC 1181 at [116]–[117].Mr Hura's sentencing[10] Mr Hura was 34 years old at the time of the offending. He was a patchedmember of the Head Hunters.[11] Mr Hura had a difficult upbringing characterised by a lack of parentalinvolvement and poverty. By the age of 12 he was abusing marijuana and alcohol.Alcohol and violence played a large part in his life. He stopped attending school inthe third form: he has no formal High School education.[12] When Mr Hura was 15 he got his first paid job as a roofer. He went on tobecome a qualified roofer. During that time he began using methamphetamine. By thetime he was 25 years old he was using the drug regularly, and was addicted. He alsostarted gambling. This led to the breakdown of his relationship with his partner, themother of his child. Around the same time he started losing jobs and the ability tokeep employment. In order to maintain his methamphetamine habit, he learned howto "cook" methamphetamine because that ensured his supply and kept him fed. That inturn led to his involvement with the Head Hunters, and involvement in Mr Harding'soperation. At the time he was approached to become involved in the operation he wasunemployed, and was in debt because of his own addiction. He became involved inorder to obtain drugs.[13] Mr Hura was charged on the basis that he participated in five of the group's sixmanufacturing phases. As already mentioned, he pleaded guilty and was sentenced to16 years and 8 months' imprisonment with a 50 per cent MPI.[14] The Judge undertook the usual two stage sentencing analysis. He began byassessing the culpability of Mr Hura's offending. Mr Hura had been involved as acook in five of the six manufacturing phases. He was not involved in the distributionof methamphetamine. His sole role was to manufacture it. He was not the only personmanufacturing the methamphetamine. He did not receive the overall profits of theoffending. It appears he was paid in methamphetamine to meet his own addiction.77 Hura sentencing notes, above n 1, at [17]–[19].The Judge selected a starting point of 21 years' imprisonment to reflect Mr Hura'sculpability on all charges.8[15] Mr Hura had some previous convictions, but this was the first time he hadappeared before the Court on drug-related charges. The Judge considered that theprevious convictions did not warrant any uplift from the starting point.[16] The Judge did not consider that the level of remorse Mr Hura had displayedand the steps he had taken towards rehabilitation were sufficient to warrant a specificdiscount, given the serious nature of the offending.9 The Judge applied a discount of20 per cent for Mr Hura's guilty pleas. The end result was a sentence of 16 years and8 months' imprisonment.[17] The Judge then turned to the question of an MPI. He said:[29] The nature of your offending means I am required to consider whetherto impose a minimum term of imprisonment. Ordinarily, an offender whoserves a term of imprisonment of more than two years must serve one-third ofhis or her sentence before being eligible to apply for parole. The Court hasthe power under s 86 of the Sentencing Act 2002 to order that an offenderserve a longer term of imprisonment before being eligible to apply for parole.It may do that in any case where it is satisfied that the normal parole provisionsare not sufficient to adequately reflect sentencing principles of deterrence,denunciation, accountability and the need to protect the public. In cases ofvery serious Class A drug offending, the courts have often imposed minimumterms of imprisonment of around the 50 per cent mark. They do so becausesuch offending invariably satisfies all four of the criteria to which I havereferred.[30] In your case, you would be eligible to apply for parole after servingjust over five years of your sentence. Given the seriousness of your offending,I consider that this would be manifestly inadequate to reflect the sentencingprinciples referred to in s 86. For that reason, I accept the Crown's submissionthat a minimum term of imprisonment of 50 per cent is justified.Mr Lang's sentencing[18] Mr Lang was aged 40 at the time of the offending. He was not a member ofthe Head Hunters. He had worked in Australia as a fabrication engineer, involved in8 Hura sentencing notes, above n 1, at [20].9 At [24].ship building and the mining industry. He then returned to New Zealand, where hedeveloped a methamphetamine addiction that progressed to daily use.10[19] Mr Lang says that in order to try to break this habit, he moved to his parents'home on a remote Northland lifestyle block. That address was next door to theproperty at which Mr Harding was running his methamphetamine manufacturingoperation. Following some social interactions with his neighbours, in the course ofwhich they became aware of his background as an engineer, Mr Lang was approachedby them and asked to fix a piece of equipment. Mr Lang says that he quickly workedout what was going on. He saw participation in the operation as a way he could feedhis own addiction.[20] Mr Lang was charged on the basis that he participated in two of the sixmanufacturing phases. On the two charges of manufacturing methamphetamineMr Lang was, as already mentioned, sentenced to 14 years and 4 months'imprisonment with a 50 per cent MPI.[21] The Judge arrived at a starting point by comparing Mr Lang's conduct to thatof his co-offenders who had already been sentenced. That included Mr Rogers andMr Hura. The Judge agreed with the Crown's submission that Mr Lang was lessculpable than Mr Rogers (starting point of 25 years' imprisonment) and Mr Hura(starting point of 21 years' imprisonment). The Judge considered that a starting pointof 19 years imprisonment was appropriate.11[22] The Judge then considered Mr Lang's personal circumstances. He had norelevant previous convictions. He expressed remorse for his offending andacknowledged his wrongdoing. The Judge said that while Mr Lang's largely positivehistory would ordinarily warrant recognition in the sentencing process "the Courtshave repeatedly and consistently emphasised that personal circumstances carry littleweight in cases involving commercial drug dealing."12 The Judge applied a "modest10 Mr Lang's sentencing proceeded on the basis that Mr Lang was introduced to methamphetamineby the other cooks in the Harding operation. But Mr Lang's affirmation filed in support of hisapplication for an extension of time confirms he was a user, and addicted, before he becameinvolved.11 Lang sentencing notes, above n 3, at [30].12 At [34].discount" of 5 per cent in recognition of Mr Lang's generally good past character andremorse.13 In the circumstances, he said, he was "simply unable to go further".14[23] A discount of 20 per cent was allowed for Mr Lang's guilty plea. That broughtthe end sentence down to 14 years and 4 months' imprisonment.[24] The Judge then considered the imposition of an MPI, saying:[37] In the normal run of things, a defendant who is sentenced to a term ofimprisonment of more than two years will be eligible to apply for parole afterthey have served one third. However, s 86 of the Sentencing Act 2002 givesthe Court the power to order a defendant to serve a longer minimum period ofimprisonment where the grant of parole after the normal period would not beadequate to address the sentencing principles of deterrence, denunciation andaccountability. The Court of Appeal has confirmed that in cases of veryserious drug dealing it is almost inevitable that the criteria for a minimumperiod of imprisonment will be met.[38] Minimum periods of 50 per cent were imposed in respect ofMr Rogers, Mr Mangu and Mr Hura. Mr Lang, I can see no proper basis fortreating you any differently. Given the sheer quantity of methamphetaminethat was produced and the role you played in the enterprise, a failure to do sowould mean that the principles of sentencing would not be given duerecognition.[39] Accordingly, I order that you are to serve 50 per cent, namely sevenyears and two months' imprisonment before you are eligible for release.(Footnote omitted) (Emphasis added)The imposition of an MPI — relevant principles[25] Before discussing the merits of the applications for extension of time, and ofthe appeals, it is helpful to outline briefly the principles that govern the imposition ofan MPI.[26] A person who is sentenced to more than two years' imprisonment generallybecomes eligible for parole after serving one-third of their sentence. But under s 86(2)of the Sentencing Act 2002, a court may order that the offender serve an MPI that islonger than the period applicable under the Parole Act 2002 if the sentencing court is13 Lang sentencing notes, above n 3, at [34].14 At [34].satisfied that the standard one-third MPI is insufficient to achieve all or any of thefollowing purposes:15(a) holding the offender accountable for the harm done to thevictim and the community by the offending:(b) denouncing the conduct in which the offender was involved:(c) deterring the offender or other persons from committing thesame or a similar offence:(d) protecting the community from the offender.[27] An MPI must not exceed the lesser of two-thirds of the full term of thesentence, or 10 years.16[28] At the time the appellants were sentenced in 2016, the imposition of an MPIfor a cook in a large-scale methamphetamine operation was not unusual. To thecontrary, it was the orthodox approach in cases of serious drug dealing, in light of thisCourt's decision in R v Wong.17 In Wong, this Court said that in cases of very seriousdrug dealing, it will be "almost invariable" that the criteria for imposing an MPI unders 86(2) of the Sentencing Act will be met, although its discretion will never befettered.18[29] However since then, a Full Bench of this Court in Zhang v R held that imposingan MPI as a matter of routine is not consistent with s 86 of the Sentencing Act.19Rather, a reasoned analysis is required both in relation to whether an MPI should beimposed, and the length of any MPI. That means that while the imposition of an MPIin cases of very serious drug offending may still be required, that must be a conclusionreached on the facts of a particular case.20 This Court said:21As this Court has emphasised in other decisions, minimum periods ofimprisonment must not be imposed as a matter of routine or in a mechanisticway. It is not sufficient for a judge simply to recite s 86 without more.A reasoned analysis is required, both as regards the imposition of a minimum15 Section 86(2).16 Section 86(4).17 R v Wong [2009] NZCA 332.18 At [21].19 Zhang v R, above n 4, at [169].20 Rogers v R [2022] NZCA 39 at [34].21 Zhang v R, above n 4, at [169].period of imprisonment and its length. In a number of recent appeals, thisCourt having undertaken that analysis has concluded that either the sentencingjudge was wrong to impose a minimum period of imprisonment or that itslength was excessive and not justified.[30] In a number of subsequent decisions where this approach was applied, it hasbeen held that lengthy periods of imprisonment and the standard MPI were sufficientto meet the sentencing purposes referred to in s 86(2) of the Sentencing Act. An MPIgreater than the standard one-third MPI was not required.22[31] The practical significance of the appellants' challenges to the imposition of anMPI is that they will determine when the appellants will become eligible for parole:whether that will be after serving the standard period of one-third of their respectivesentences, or only after serving 50 per cent of those sentences.[32] It is important to bear in mind that an offender becoming eligible for paroledoes not mean that the offender will automatically be released on parole. Rather, itmeans that the offender is able to apply for parole. The Parole Board can then considerwhether the offender is ready to be released into the community on parole. In makingthat decision, the paramount consideration for the Parole Board is community safety.23An offender who is released on parole remains liable to be recalled to prison duringthe remainder of their sentence if they breach any of the parole conditions imposed bythe Parole Board.Applications for extension of time[33] An appeal against sentence must normally be brought within 20 working daysfrom the date on which the sentence is imposed.24 However the appeal court mayextend the time allowed for filing a notice of appeal.25 In deciding whether to grantan extension of time, the appeal court must strike a balance between public and privateinterests.26 The public interest favours finality. There is also a public interest in the22 Wilkinson v R [2021] NZCA 438 at [27]–[28]; Tran & Navarro v R [2021] NZCA 464 at [55].See also Thai & Te-Hira [2021] NZHC 1006.23 Parole Act 2002, s 7(1).24 Criminal Procedure Act 2011, s 248(2).25 Section 248(4).26 Cheung v R [2021] NZCA 175, [2021] 3 NZLR 259 at [51]; and R v Knight [1998] 1 NZLR 583(CA) at 587.maintenance of confidence in the administration of justice. The appellants' privateinterests favour an extension, particularly where a conviction or liberty is at stake.The interests of others involved in the case (such as victims) may also favour finality.27[34] In R v Knight this Court said that in order to succeed in an application to extendtime to appeal, the applicant must demonstrate some special feature or featuresparticular to the case that lead to the conclusion that in all the circumstances justicerequires that leave be given:28Amongst the considerations which will also be relevant in that overallassessment are the strength of the proposed appeal and the practical utility ofthe remedy sought, the length of the delay and the reasons for the delay, theextent of the impact on others similarly affected and on the administration ofjustice, that is flood gates considerations, and the absence of prejudice to theCrown.[35] The appellants only challenge the MPIs imposed. They do not challenge theirconvictions or the length of the sentences imposed. The result of allowing the appealswould not be a further trial. So some considerations, such as such as the interests ofvictims or witnesses or difficulty of retrying the case, do not arise here.29[36] The factors of particular relevance in the present cases are the length of thedelay and the reasons for it, and the strength of the proposed appeals.[37] As already mentioned, from a practical perspective what is in issue in each caseis the date at which the appellant will first become eligible to be considered for paroleby the Parole Board. That bears on the liberty of each appellant. So an error inimposing an MPI would be a material factor favouring the grant of an extension oftime. As this Court said in Cheung:30The period of 20 months inadequately-explained delay would likely precludean extension of time in other cases. But we find that a minimum period ofimprisonment was not required in this case and the very substantial differencebetween the statutory minimum period (one third of the sentence) and theminimum period imposed is a special circumstance justifying an extension inthe circumstances.27 Cheung v R, above n 26, at [51].28 R v Knight, above n 26, at 589.29 Cheung v R, above n 26, at [54].30 At [73].[38] The strength of the proposed appeals is addressed in more detail below.But first, we consider the length of the delay and the reasons for it in each case.Mr Hura: length and reasons for the delay[39] As already mentioned, Mr Hura was sentenced on 22 April 2016.His application for an extension of time to appeal was filed on 18 August 2022, morethan six years out of time.[40] Mr Hura provided an affirmation setting out the background to his applicationfor an extension of time to appeal. He says that he was not aware of his legal rights inrelation to an appeal after his sentencing. The possibility of an appeal was notsomething his lawyer discussed with him, to the best of his memory. In particular, hedid not understand that he could appeal against an MPI on its own, without challenginghis conviction or other aspects of his sentence.[41] Recently Mr Hura became aware that his co-offender and fellow inmate,Mr Rogers, had successfully applied to this Court to appeal out of time and to have hisMPI set aside. That was when Mr Hura first became aware that an MPI could beappealed on its own. Mr Rogers subsequently reached out to Mr Hura to encouragehim to try to do the same.[42] Mr Hura says that a reduction in his MPI will have a significant practical effect.He has a clean prison history. He is currently housed in a self-care unit classified asminimum/low security. Once he passes his parole eligibility date, he will be eligiblefor programmes such as "release to work".[43] Mr Hura says that he no longer identifies as a Head Hunter member in prison.He does not keep in touch with former associates or members of the gang. He has leftthose associations behind. He has yet to formally hand his membership back, but thisis something he intends to do once he is released and in a position to do so. Mr Hurasays he realises it is the right thing for him to do. It is not a decision he has arrived atlightly: "It took a lot of internal working through for many reasons. Especially whenbeing a member has kept me safe moving through different environments."[44] Mr Hura says he now sees where he went wrong and is actively trying to createa positive future for himself and repair his relationship with his daughter. That will behis main priority once he is released from prison. He says that is the main drivingfactor behind his application for an extension of time to appeal, so he can reconnectwith his daughter and get to know her.Mr Lang: length and reasons for the delay[45] Mr Lang was sentenced on 16 August 2016. His application for an extensionof time to appeal was filed on 18 August 2022, just over six years out of time.[46] Mr Lang provided an affirmation setting out the background to his applicationfor an extension of time to appeal. At the time of his sentencing in August 2016 heconsidered that the sentence he received was unjust, especially the MPI. He asked hisparents to ask his lawyer what appeal rights he had, as it was not easy for him to contacthis lawyer from prison. Mr Lang's mother spoke to his then lawyer, and reported toMr Lang that the lawyer's view was that he just had to serve his sentence and applyfor parole once the time arrived.[47] In 2017 Mr Lang learned from another inmate that he could seek to appeal outof time, and could appeal the MPI on its own. A family member of the other inmatehad succeeded in doing so. Mr Lang wrote to the lawyer who had represented theother inmate's family member, but heard nothing back. He asked his mother to contactthat lawyer. She tried to call and left several voicemails, but no-one returned her calls.She also attempted to email that lawyer, with an equal lack of success. After that,Mr Lang says, they gave up for a time.[48] In 2018 Mr Lang was transferred to Hawkes Bay Regional Prison. He wroteto Hastings Community Law Centre to try to get more information about appealinghis MPI. But he did not receive a response.[49] In 2019 Mr Lang saw that another inmate had a legal aid form, and that on thatform there was a section where you could appeal your sentence without appealing yourconviction. Mr Lang made himself a copy of the form, filled it in and sent it toLegal Aid at the address shown on the form.[50] In 2020 Legal Aid wrote back granting the application and informing Mr Langthey had appointed a lawyer to represent him. Mr Lang spoke to that lawyer bytelephone. The lawyer advised that Mr Harding was going through the appeal processand Mr Lang should wait to see what happened with that appeal. Mr Lang did notwant to adopt that course of action. But subsequent attempts to contact that lawyer,and discuss the appeal with him, were unsuccessful.[51] At that point, Mr Lang says, he gave up trying. He decided to focus onrehabilitation and the things the prison could offer him. He has made significantprogress towards those goals. He is housed in the Whare Tirohanga Māori Unit.He became a tohunga whakairo | master carver. He has been involved in pōwhiri andpresentations for visitors to the prison, including a number of Cabinet Ministers.He has been a mentor for other men. He is very involved in Kaupapa Māori pathwayswithin the prison. He is a trusted worker and has been outside the prison on manyoccasions, including to work on carving projects.[52] Mr Lang subsequently became aware that his co-offender and fellow inmate,Mr Rogers, had successfully pursued an appeal out of time against the MPI imposedon him. Mr Rogers gave Mr Lang contact details for his lawyer, so he could try to dothe same.Factors relevant to an extension of time in this case[53] The six year delay in pursuing these appeals is very long. The explanationsprovided by Mr Hura and Mr Lang go some way to explaining that delay. In particular,it appears that Mr Lang actively sought to pursue an appeal but encountered a numberof barriers to doing so. But those explanations are not in themselves sufficient tojustify departure from the principle of finality, in the absence of some other specialfeatures which support an extension of time. In these two cases, that comes down tothe strength of the proposed appeals against imposition of an MPI, as the Crownacknowledged. If an MPI should not have been imposed in one or both cases, then asin Cheung that has implications for the liberty of the appellant(s), and would weighstrongly in favour of an extension of time. We therefore turn to the merits of theappeals. We then return to the question of extension of time.Should a 50 per cent MPI have been imposed in Mr Hura's case?Submissions on appeal[54] Mr de Groot, counsel for Mr Hura and Mr Lang, submitted that in both casesan MPI had been imposed without the fact-specific analysis required by s 86 of theSentencing Act.[55] The catalyst for both of these appeals was the successful appeal by Mr Rogersagainst his MPI.31 But Mr de Groot emphasised that this appeal was not brought on aparity basis. As this Court explained in Rogers, whether an MPI should be imposedinvolves a fact-specific inquiry. It does not follow from the imposition of an MPI forone offender that the same MPI should automatically apply to all offenders involvedin that offending. That approach would lead to the mechanistic and routine applicationof MPIs that this Court has said should cease.32[56] Rather, Mr de Groot submitted that the same reasoning that led this Court toallow Mr Rogers' appeal should lead this Court to allow the appeals of Mr Hura andMr Lang. In their cases, as in Mr Rogers' case, an MPI was imposed with littlediscussion. It was treated as inevitable, consistent with the approach adopted bythis Court in Wong. But the subsequent guidance of this Court in Zhang confirms thatan individual assessment is required in each case, by reference to the sentencingpurposes identified in s 86(2) of the Sentencing Act. Mr de Groot submitted that nosuch consideration had taken place here. If it had, an MPI of 50 per cent would nothave been imposed in either case.[57] The Crown submitted that Rogers was one of the rare cases where privateinterests outweighed the public interest in finality. Mr Rogers' unique personalcircumstances went a long way to meeting the four sentencing purposes referred to ins 86(2) of the Sentencing Act. Mr Hura's circumstances are less compelling.In particular, he remains a member of the Head Hunters. Whether Mr Hura's specialcircumstances are sufficient to justify granting an extension of time and not imposingan MPI is more problematic.31 Rogers v R, above n 20.32 At [44].Was the 50 per cent MPI justified in Mr Hura's case?[58] The Judge proceeded on the basis that serious drug offending invariablysatisfies the four sentencing purposes identified in s 86(2) of the Sentencing Act.33But as this Court said in Zhang, it is not appropriate to make that assumption. Rather,it is necessary to consider the length of the sentence imposed and ask whether thenormal parole period is sufficient to achieve the sentencing purposes identified ins 86(2).34[59] In this case, the sentence imposed on Mr Hura — 16 years and 8 months'imprisonment — was a lengthy one. Under that sentence, he would not be eligible forparole until he had served 5 years and 7 months in prison. The effect of the MPI wasto increase that minimum period of imprisonment by 2 years and 9 months.[60] We consider that the lengthy sentence imposed on Mr Hura, coupled with the(standard) MPI of 5 years and 7 months, is sufficient to hold him accountable for theharm done to the community by his offending. It denounces the conduct in which hewas involved. It is a very significant deterrent to drug-related offending.[61] So far as protection of the community is concerned, the information before theJudge indicated that Mr Hura had taken steps towards rehabilitation while in prison onremand. He had wide family support. Letters from his employer showed he was aworthwhile, honest and hard-working employee.35[62] The promise that was apparent at the time of sentencing has been confirmedby Mr Hura's conduct while in prison, and the significant rehabilitative progress hehas made. Although he has not yet formally handed back his membership of theHead Hunters, he says he is committed to doing so, and has severed ties with the gangand with associates who remain members of that gang.[63] There is good reason to think that Mr Hura need not be detained for anadditional 2 years and 9 months in the interests of the safety of the community.33 Hura sentencing notes, above n 1, at [29] set out at [17] above.34 Zhang v R, above n 4, at [277].35 Hura sentencing notes, above n 1, at [23].His continuing membership of the Head Hunters was at the time of sentencing, andremains, a risk factor. However we consider that whether Mr Hura can be releasedwithout putting the community at risk after 5 years and 7 months in prison is bestassessed by the Parole Board at the relevant time, with all the information that willthen be available to it. The information available at the time of his sentencing did notcompel a conclusion that a longer MPI was required to protect the community.[64] The fact-specific engagement with the s 86(2) sentencing purposes mandatedby Zhang leads us to the conclusion that an MPI longer than the standard period wasnot required in Mr Hura's case. The imposition of a 50 per cent MPI in 2016, althoughorthodox at that time, was not in our view consistent with the requirements of theSentencing Act.Outcome[65] We have concluded that the merits of Mr Hura's appeal are strong.A 50 per cent MPI should not have been imposed. Mr Hura's liberty — or moreprecisely, his opportunity to achieve liberty if he continues to make good progress withrehabilitation and poses no risk to the community — is engaged. In thosecircumstances, the interests of justice require that an extension of time be granteddespite the lengthy delay in seeking to bring an appeal, and that his appeal be allowed.Should a 50 per cent MPI have been imposed in Mr Lang's case?Submissions on appeal[66] The submissions made by Mr de Groot on behalf of Mr Lang paralleled thosehe made on behalf of Mr Hura, which are set out above.[67] Similarly, the Crown's submissions on Mr Lang's appeal essentially paralleledthose made in respect of Mr Hura's appeal, as summarised above. The issue ofcontinuing gang membership does not however arise in respect of Mr Lang.Was a 50 per cent MPI justified in Mr Lang's case?[68] The approach adopted to imposition of an MPI when sentencing Mr Lang wasconsistent with this Court's decision in Wong. The imposition of an MPI was treatedas "almost inevitable" in circumstances where Mr Lang had been convicted of seriousdrug dealing. But as explained above, this Court has since emphasised in Zhang thata reasoned analysis by reference to the sentencing purposes in s 86(2) of theSentencing Act is required.[69] The sentence of 14 years and 4 months' imprisonment imposed on Mr Lang isa lengthy sentence that in itself emphasises accountability, denunciation anddeterrence. The standard MPI for that sentence would be 4 years and 9 months.The effect of the 50 per cent MPI was to increase that minimum period ofimprisonment by 2 years and 3 months.[70] As with Mr Hura, we do not consider that this is a case in which a longer MPIwas necessary to achieve the sentencing purposes in s 86(2). The sentence imposedon Mr Lang, and the standard MPI of 4 years and 9 months' imprisonment, are in ourview sufficient to hold Mr Lang accountable for the harm done to the community, todenounce his conduct, and to deter similar offending.[71] The material before the Judge did not suggest that Mr Lang was likely to posea material risk to the community after serving the standard MPI. To the contrary, therewas reason to be optimistic that he would return to his former productive life.The information we have received about Mr Lang's conduct in prison confirms thatthat optimism was well-founded. As with Mr Hura, we consider that the assessmentof whether Mr Lang needs to remain in custody to protect the safety of the communityafter serving one-third of his sentence is best carried out by the Parole Board at therelevant time. Put another way, there was nothing before the Judge to suggest thatMr Lang posed such a threat to the safety of the community that its protection requireda longer MPI to be imposed at that time.[72] The Judge saw parity with Mr Rogers and Mr Hura as a relevant factor inimposing an MPI on Mr Lang. To the extent that parity between co-offenders isrelevant here — and as this Court explained in Rogers, an individualised approach toimposing MPIs means it is not a significant factor36 — the successful appeal byMr Rogers and the conclusion we have reached above in relation to Mr Hura nowpoint the other way.[73] In summary, we have concluded that the imposition of a 50 per cent MPI, ratherthan the standard MPI, was not required by the sentencing purposes identified ins 86(2) of the Sentencing Act. The 50 per cent MPI was orthodox at the time thesentence was imposed, but in light of the guidance provided by this Court in Zhang itshould not have been imposed.Outcome[74] The merits of Mr Lang's appeal are strong. A 50 per cent MPI was notappropriate in this case. His liberty is at stake. In these circumstances, the interestsof justice require that an extension of time to appeal be granted, and that the appeal beallowed.Result[75] The applications for extension of time to appeal are granted.[76] The appeals are allowed.[77] The minimum period of imprisonment imposed on each appellant is set aside.Solicitors:Crown Solicitor, Whangarei for Respondent36 Rogers v R, above n 20, at [43]–[44].