MARLON BATISTA DE MACEDO v R [2020] NZCA 132

MARLON BATISTA DE MACEDO v R [2020] NZCA 132 [30 April 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA145/2018[2020] NZCA 132BETWEEN MARLON BATISTA DE MACEDOAppellantAND THE QUEENRespondentHearing: 26 February 2020Court: Miller, Dobson and Moore JJCounsel: A J Maxwell-Scott for AppellantZ R Johnston for RespondentJudgment: 30 April 2020 at 11.30amJUDGMENT OF THE COURTA The appeal is allowed.B The sentence of eight years six months' imprisonment is quashed andsubstituted with a sentence of seven years four months' imprisonment.C The minimum period of imprisonment imposed is also quashed.____________________________________________________________________REASONS OF THE COURT(Given by Dobson J)[1] On 16 March 2018, the appellant (Mr de Macedo) was sentenced in the DistrictCourt at Manukau to a term of eight years six months' imprisonment,1 having pleadedguilty to one charge of importing the class A drug cocaine into New Zealand. He hasappealed the length of that sentence and also the imposition of a minimum period ofimprisonment (MPI) of 50 per cent of its length.[2] Mr de Macedo's notice of appeal was lodged before the Full Court's decisionin Zhang v R.2 The appeal was argued for Mr de Macedo on the basis thatthe guidelines in Zhang should apply because the appeal against sentence had beenfiled before the judgment in Zhang and the application of that decision would result ina more favourable outcome for him.3[3] The Crown opposed the application of the guidelines in Zhang to offendinginvolving class A drugs other than methamphetamine. Ms Johnston submitted that theguidelines in Zhang ought only to apply as a cross-check, as previously occurred incocaine sentencing against the bands in R v Fatu, the previous guideline judgment onsentencing for dealing in methamphetamine.4[4] In R v Ingram, this Court acknowledged that it might be appropriate todifferentiate from Fatu when sentencing for dealing in class A drugs other thanmethamphetamine.5 The Court observed that the differentiation versus uniformitydebate has been engaged in only briefly and inconsistently by New Zealand courts.6A reasoned basis for differentiation between class A drugs would require evidencereliably ranking the relative levels of harm of all types caused by each of them.[5] There was no evidence of that type in this case. Rather, Ms Maxwell-Scottargued for the application of the guidelines in Zhang on the basis that cocaine waspresumptively as pernicious and harmful as methamphetamine, despite not attractingthe same notoriety.1 R v de Macedo [2018] NZDC 14569.2 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.3 At [188].4 Clarke v R [2013] NZCA 473 at [25]; and R v Fatu [2006] 2 NZLR 72 (CA).5 R v Ingram [2018] NZCA 252, [2018] 3 NZLR 783.6 At [60].[6] Given the circumstances and timing of this appeal, we will assess the challengeto Mr de Macedo's sentencing by reference to the guidelines in Zhang. That ispermissible because the legislature has categorised both as class A drugs and Fatu hastraditionally been used as a cross-check when sentencing for other class A drugs.7In doing so, we do not intend that the Zhang guidelines should automatically apply inall cases of cocaine dealing. Rather, on the record before us in the present appeal,there is no reason to suppose that cocaine should be considered more pernicious thanmethamphetamine. The question whether any distinction should be drawn can be leftfor another day.The circumstances of the offending[7] In September 2017, Mr de Macedo travelled from Brazil to Auckland via Dubaiand was subject to a Customs search on arrival. Cocaine weighing 2383.5 grams wasfound hidden in the lining of his suitcase. Depending on circumstances of resale, thevalue of the cocaine imported ranged between approximately $1,072,000 and$1,668,000.[8] Mr de Macedo provided two different explanations for his involvement in theimportation of the cocaine. In his initial interview with Customs, he stated he becameinvolved at the initiation of a man named Renato, who had given him a loan to buya suitcase and a phone, but his later explanation to a probation officer was that it wasan all-expenses-paid trip in return for carrying a parcel for Renato. He claimed thathe was advised that if he was caught he would simply be deported from New Zealand.[9] Mr de Macedo will now be 35 years old. He was 33 when sentenced in March2018 and was single and unemployed at the time of his arrival in New Zealand.He was co-operative with the New Zealand authorities throughout and promptlyentered a guilty plea. Members of his family wrote letters to the sentencing Judge inemotional and loving terms, emphasising that the offending was out of character, thathe was a very good man and very much missed by them.7 Clarke v R, above n 4, at [25]. See also R v Cook [2017] NZHC 2034 at [28]–[29] and R v Dixon[2019] NZHC 920 at [31]–[33].The District Court sentencing[10] Judge Bergseng adopted a starting point of 12 years' imprisonment.8 It wasagreed as appropriate by both counsel appearing on sentencing and was consistentwith precedent. The Crown had cited R v da Silveria and R v Nevarez.9 In those cases,in offending that was materially indistinguishable from Mr de Macedo's, 2350 gramsand 2985 grams of cocaine respectively had been imported into New Zealand in thelining of suitcases. A 12-year starting point had been adopted in both those cases.[11] The Judge accepted that there were no aggravating factors requiring anincrease from the 12-year starting point.10 He adopted a cautious approach to theextent that mitigating circumstances could be recognised for those convicted ofdealing commercially in controlled drugs, citing the Supreme Court's decision inJarden v R.11 The Judge accepted that serving a prison sentence in New Zealand wouldbe more difficult for Mr de Macedo, given that his primary language is Portuguese andthat he had only the most rudimentary English.12 As a result, New Zealand culturaland social norms would be unfamiliar to him and he would be isolated in prison. Thesentence was reduced by eight months to take account of those personal mitigatingcircumstances, and he was given 25 per cent discount for the guilty plea, reducing theend sentence to eight years six months' imprisonment.[12] The Judge considered the factors in s 86(2) of the Sentencing Act 2002(the Act) as to whether to impose an MPI.13 Referring to the judgment of this Courtin Mok v R,14 the Judge considered it relevant to hold Mr de Macedo accountable forthe harm done to the community, to denounce the conduct and to deter him and othersfrom committing similar offences. Influenced by the significant quantity of the drug,and the level of harm to the community had it not been intercepted, the Judge foundthat an MPI should be imposed. He set that at four years and three months, being 50per cent of the end sentence.8 R v de Macedo, above n 1, at [21].9 R v da Silveria [2014] NZHC 791; and R v Nevarez [2012] NZHC 1566.10 R v de Macedo, above n 1, at [22].11 Jarden v R [2008] NZSC 69, [2008] 3 NZLR 612.12 R v de Macedo, above n 1, at [24]–[26].13 At [29]–[34].14 Mok v R [2017] NZCA 537.The approach on appeal[13] Having decided that, at least in this case of importation of cocaine, theguidelines in Zhang should apply, we assess the offending against those guidelinesrather than considering whether Mr de Macedo can make out an error in the pre-Zhangsentencing.[14] The quantity of the class A drug involved in the offending remains a primaryconsideration. Band five in Zhang for two kilograms or more retains the same spreadof years as applied under band four of Fatu, namely 10 years' to life imprisonment.Greater flexibility within and possibly below that band is now recognised in Zhang,which allows closer analysis of the role played by the offender in fixing the level ofculpability and thus the stage one sentence starting point.15[15] Adopting the indicia set out at [126] of Zhang, Mr de Macedo comes within anumber of the "lesser" criteria, and none of those in the "significant" or "leading"categories. He appears to have been a naïve and possibly vulnerable candidate forexploitation by others, involved for the simple but crucial role of carrying a substantialquantity of cocaine across the border into New Zealand. He appears to have beeninvolved for little or no financial gain beyond the cost of his trip to New Zealand.Further, he claimed that he believed that if apprehended with the packages, he wouldsimply be deported from New Zealand. There is no suggestion he had any influenceon those above him in the chain, or in any distribution of the drug once delivered inNew Zealand.[16] Ms Maxwell-Scott submitted that, when measured against the criteria for lesserinvolvement as defined in Zhang, Mr de Macedo ought to be seen as below the bottomof band five. She supported that submission with the point that the cocaine wasanalysed as having a purity of 82 and 83 per cent, so that if the weight was reduced bythe approximately 17 per cent of additives, the amount of pure cocaine would be belowthe two kilogram level. She contended for a starting point of nine years' imprisonmentif the very limited nature of his role justified placing the offending in band four ofZhang, where the range is between eight and 16 years' imprisonment.15 Zhang v R, above n 2, at [118].[17] For the Crown, Ms Johnston submitted that, if Zhang was to be applied to thiscocaine importation, then Ms Maxwell-Scott's reliance on the indicia of lesserinvolvement overlooked the importance of the role played by the importer.Ms Johnston cited the observation from Zhang:16Knowing participation in importation or manufacture should simply be treatedas indicative of a more significant role and degree of culpability, attracting ahigher sentence starting point across the range indicated.[18] We are mindful that couriers of cocaine involved in single imports ofapproximately the quantity involved here and using the same method have previouslywarranted a starting point of 12 years' imprisonment.17 Deterrence has been animportant consideration. In this appeal, Ms Maxwell-Scott submitted that deterrenceshould not carry great weight when potential offenders in circumstances such asMr de Macedo's will be unaware of the severity of consequences, and not dissuadedfrom participating by the sentences given to others.[19] General deterrence remains a valid and important consideration in sentencing.It applies to residents of other countries who contemplate entering New Zealand withillicit drugs, the importation of which they must know is unlawful. They can beexpected to enquire into what might happen to them if they are apprehended. This casesupplies evidence of that: Mr de Macedo did enquire, although he was evidently ledto believe he would merely be deported. Deterrence accordingly justifies high startingpoints for couriers notwithstanding that they sometimes act for little reward, or on amisunderstanding about the risk and/or consequences of apprehension.[20] However, we are prepared to accept that Mr de Macedo's role inthe importation was limited to that of a mere courier, having (as noted in [15] above)no other involvement in the transaction and no material financial interest. Thatwarrants a reduction from the pre-Zhang starting point. It is not a reduction thatnecessarily will apply uniformly to other couriers importing similar quantities of classA drugs. It is, however, the appropriate application of Zhang considerations to thiscase.16 At [122].17 R v da Silveria; and R v Nevarez, above n 9.[21] We do not accept that Mr de Macedo can be placed any lower than the bottomof band five. Given the substantial extent to which his role comes within the "lesser"category, and the relatively modest margin above the bottom of band five that wasinvolved in the importation, we consider the approach under Zhang dictates a startingpoint nearer the bottom of that band and fix it at 11 years.Mitigating circumstances[22] Ms Maxwell-Scott submitted that the five per cent discount allowed forMr de Macedo's personal mitigating circumstances was too little. He was serving alengthy prison sentence away from family and friends, isolated within the prisonbecause of his complete lack of English at the time of sentencing,18 he had previousgood character and his naivety led to involvement in the offending.[23] The effect of Ms Maxwell-Scott's submission was that the Judge consideredthe Supreme Court decision in Jarden constrained the extent of discount for suchpersonal mitigating factors that might be given in cases of serious drug offending.19It was submitted that reconsideration of this approach, as it applied at the second stageof sentencing in Zhang, illustrates that personal mitigating circumstances relating tothe offender are equally applicable when dealing with class A drug offending as in anyother offending.20[24] Ms Maxwell-Scott submitted that, assessed independently of the perceivedconstraint that relies on Jarden, the combination of mitigating circumstances forMr de Macedo warranted a reduction of 10 to 15 per cent.[25] In opposing any greater reduction, Ms Johnston submitted that deterrenceremained as important a consideration in sentencing post-Zhang, and that there wasno error in the five per cent discount allowed by the sentencing Judge. Ms Johnstoninvited comparison with Mr Yip, one of the other individual appellants in Zhang,where the Court upheld a reduction of 13 per cent reflecting youth, genuine remorse,18 It was acknowledged that Mr de Macedo now has rudimentary English.19 Jarden v R, above n Error! Bookmark not defined..20 Zhang v R, above n 2, at [136].lack of prior convictions, limited English and distance from support systems.21Ms Johnston submitted that Mr de Macedo could not plead youth or particularremorse, so the discount of five per cent remained appropriate.[26] Establishing relativity with the extent of discount given for personal mitigatingcircumstances for other offenders such as Mr Yip cannot be an arithmetic exercise.The pre-sentence report acknowledges that Mr de Macedo regrets and is sorry for hisoffending, but those sentiments may arise out of concern for his own situation,including separation from his family, rather than remorse for the criminality of hisoffending. At the age of 35, assumed to be without prior convictions, he is an offenderwho will find serving a prison sentence in New Zealand substantially more difficultthan those prisoners with the ability to communicate in English and with some measureof support from friends or family in this country. We consider a discount for thesemitigating factors of eight per cent would be appropriate.[27] Accordingly, applying the Zhang guidelines to Mr de Macedo, we would adopta starting point of 11 years or 132 months' imprisonment and allow a discount of eightper cent for personal mitigating circumstances. From that point, it is accepted thatMr de Macedo's early guilty plea entitled him to a 25 per cent discount, which we taketogether with the mitigation discount,22 reducing the end sentence to 88.44 months or7 years 4 months' imprisonment. We are satisfied that is the appropriate sentence inthis case.MPI[28] Ms Maxwell-Scott submitted that the effect of the Judge's reasoning inimposing an MPI was that such orders constituted one of the very few tools availablein the war against drug offending, and that the imposition of an MPI was a matter ofcourse for serious drug offending.[29] The Judge did refer to each of the four purposes of sentencing in s 86(2) ofthe Act, observing that the quantity of cocaine, and the level of harm that could have21 At [301].22 See Reweti v R [2018] NZHC 809 at [22]–[24].been done to the community, were significant. The Judge adopted an observation ofthis Court that the harm caused by importation of drugs means that "deterrence canfairly be viewed as paramount".23[30] On all the information available about Mr de Macedo, it appears he will beadequately deterred from any attempted repetition of the importation of cocaine intoNew Zealand by the relatively lengthy sentence that we will substitute in allowing thisappeal. We do not consider that an MPI is required to reinforce the deterrent signalfor offending that occurs in the circumstances that arose here.[31] In Zhang, the Court rejected any notion of a presumption that MPIs shouldordinarily be imposed where the length of sentences for drug offending was nine yearsor more.24 An evaluative assessment of the criteria in s 86 is required in each case.In the individual appeals considered in Zhang, there are no close comparators forwhether an MPI should be imposed here. However, the assessments in those appealsare instructive. In the cases of Messrs Zhang, Thompson and Yip, a substantially moreserious level of commercial dealing was involved. Mr Zhang was convicted ofimporting 17.9 kilograms of methamphetamine,25 and Mr Thompson was convictedon a representative charge of supplying 4.2 kilograms and possessing 2.6 kilograms ofmethamphetamine for supply.26 Mr Yip was convicted on the lead charge of importingthe even larger volume of 60.9 kilograms of methamphetamine, as well as otherconvictions for supply and attempted supply.27 In those cases where substantiallylonger end sentences were fixed, the Court considered that insufficient deterrentsignals would be sent if the usual entitlement to parole after one third was to apply.[32] In contrast Ms Hobson, another of the individual appellants in Zhang, wasconvicted on three charges of importing 300 grams of methamphetamine, threecharges of possession for supply and one of conspiracy to supply 290 grams.28This Court reduced her sentence from nine years to seven years 10 months'imprisonment and quashed the MPI that had been imposed by the District Court.23 R v de Macedo, above n 1, at 30 citing Mok v R, above n 14, at [14].24 Zhang v R, above n 2, at [172]–[174].25 At [246]–[264].26 At [265]–[281].27 At [282]–[309].28 At [229]–[245].The Court considered that too much emphasis had been placed on deterrence and thatpositive rehabilitative prospects ought to have been given their ordinary scope.In Ms Hobson's circumstances, an MPI was not warranted.[33] As noted in Zhang, the fact that an offender will be deported on release is nota proper ground for refusing an MPI if it is otherwise appropriate.29[34] Mr de Macedo's circumstances are probably closer to those of Ms Hobson thanthe other individuals considered in Zhang. His role as a courier was a relativelylow-level one in the importation, he had no other involvement, he acceptedresponsibility with an early guilty plea and there were no other aggravating featuresof the offending. We accordingly consider that an MPI is not required.Outcome[35] We allow the appeal and quash the sentence of eight years six months'imprisonment, and substitute it with a sentence of seven years four months'imprisonment. The MPI imposed is also quashed.Solicitors:Crown Law, Wellington for Respondent29 At [168].