NEEMS & ORS v R [2017] NZCA 21

NEEMS & ORS v R [2017] NZCA 21 [22 February 2017]NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OFIDENTITY OF PERSON NAMED "L" IN THIS JUDGMENT REMAINS INFORCE.NOTE: HIGH COURT ORDER PROHIBITING PUBLICATION OFIDENTIFYING PARTICULARS OF BUSINESS ASSOCIATED WITHHUI ZHANG REMAINS IN FORCE.IN THE COURT OF APPEAL OF NEW ZEALANDCA546/2015[2017] NZCA 21BETWEEN MICHAEL JEFFREY NEEMSAppellantAND THE QUEENRespondentCA589/2015BETWEEN GUO PEI CHENAppellantAND THE QUEENRespondentCA606/2015BETWEEN DESMOND LOKEAppellantAND THE QUEENRespondentCA649/2015BETWEEN DESMOND RILEY LINGARD SHARPAppellantAND THE QUEENRespondentHearing: 11 August 2016Court: Winkelmann, Williams and Gilbert JJCounsel: P J Kaye for Appellant NeemsT M Cooper for Appellant ChenT M Cooper for Appellant LokeH B Leabourn for Appellant SharpZ R Johnston for RespondentJudgment: 22 February 2017 at 11 amJUDGMENT OF THE COURTA Mr Sharp is granted an extension of time to appeal.B Mr Sharp is granted leave to amend his grounds of appeal.C All appeals are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Williams J)Introduction[1] The appellants in these appeals were among the targets of Operation Gem. This operation was an investigation into the importation and distribution of pseudoephedrine, and the manufacture and distribution of methamphetamine. The operation was undertaken between August and December 2013. It detected a relatively sophisticated drug operation at the apex of which was Hui Zhang,1 who imported pseudoephedrine from China on a very large scale, repackaged and distributed it in smaller but still substantial amounts. This was done via trusted couriers to second-tier members of the syndicate. These individuals then on-distributed to manufacturers of methamphetamine usually in return for a cut of the proceeds. The pseudoephedrine was imported in the form of Contac-NT and is an important precursor ingredient in the manufacture of methamphetamine.1 Mr Zhang has also filed an appeal but this was adjourned and so was not heard as a part of this consolidation of the Operation Gem appeals.[2] The appellants Mr Chen and Mr Sharp were second-tier distributors. Over the course of Operation Gem, Mr Chen was involved in 13 transactions involving 11.25 kilograms of pseudoephedrine valued at an estimated $1 million. Mr Sharp admitted to charges of supply, and possession for supply, of 7.5 kilograms of pseudoephedrine having an estimated value of $664,000. Mr Sharp also used the product to manufacture methamphetamine for profit in his own right. A search of the address occupied by Mr Sharp and his family revealed a relatively large-scale clandestine lab, together with significant quantities of stored cash. Police found 112 grams of finished methamphetamine in a bedroom at the address. The appellant Mr Loke was found to be part of this manufacturing operation. He was convicted of possession of the 112 grams of methamphetamine as well as possession of equipment, materials and precursor substances.[3] Mr Neems was apprehended while driving a car in which police found 22 Contac-NT sets, containing just under two kilograms of pseudoephedrine to the value of $176,000. The pseudoephedrine had passed through a number of hands(including Mr Sharp's) before Mr Neems retrieved the package.Scope of the appeals[4] Mr Neems appeals against his conviction for possession of pseudoephedrinefor supply but does not challenge his sentence of four years' imprisonment.[5] Mr Sharp appeals against sentence only. He argues that the period of imprisonment was manifestly excessive and that a minimum period of imprisonment(MPI) was unnecessary. He was sentenced to nine years and nine months'imprisonment with an MPI of five years.[6] Messrs Chen and Loke appeal only against the imposition of their respective MPIs. Mr Chen was sentenced to eight years and six months' imprisonment with anMPI of four years and three months; Mr Loke was sentenced to seven years andthree months' imprisonment with an MPI of four years.The conviction appeal — Mr Neems[7] On 21 October 2013 Mr Sharp ordered 22 sets (around five kilograms) of Contac-NT from Mr Zhang — just under two kilograms of pseudoephedrine. The estimated value for this order was $176,000. The product was provided through aperson whom we refer to as L, one of Mr Zhang's personal couriers. Mr Sharp was observed at the side of a road in Highland Park collecting the 4.9 kilogram package from L. He then travelled to an address in Huntington Park and placed the package into the boot of a Mercedes motor vehicle parked outside the address. According to Mr Neems, this was the residence of Mr Neems' business associate named Reg.Mr Neems arrived about an hour later in a Holden Commodore and parked near the Mercedes. A male was then observed coming from the address towards the Mercedes. Mr Neems said this male was Reg. The male was observed removing the package from the boot of the Mercedes. It was inferred that he placed it in the frontpassenger footwell of Mr Neems' Holden. It seems, however, that the officer undertaking surveillance of the site did not actually see the placement of the packageinto Mr Neems' Holden.[8] The Holden was subsequently stopped by police and searched. As found in situ in the Holden, the Contac-NT was in a yellow plastic Pak'nSave shopping bag and that bag had in turn been placed into a white Bed Bath & Beyond plastic shopping bag.[9] The unknown male "Reg" was never apprehended or interviewed.Appeal standard[10] Mr Neems argues that there was insufficient evidence upon which a jury could convict him of the offence. He relies upon s 232(2)(a) of the Criminal Procedure Act 2011 (CPA), which lists as a ground of appeal that "having regard to the evidence, the jury's verdict was unreasonable". This test reflects thepre-CPA approach under s 385(1)(a) of the Crimes Act 1961. The 2007 discussion inR v Owen in relation to appeals against conviction on the ground of unreasonable verdict thus remains relevant:2 a verdict will be unreasonable if, having regard to all the evidence, thejury could not reasonably have been satisfied to the required standard that the accused was guilty.[11] The Supreme Court in that case made it clear that where, as here, the appeal is founded on insufficiency of evidence, the appellant is not required to demonstrate a complete absence of supporting evidence for the verdict of guilty. Rather, a verdict may be unreasonable even if there is some evidence to support it. A more holistic assessment is called for. But, as this Court said in R v Munro, the appellate function is one of review only; it is not a retrial on the record.3 Appellate courts ought notlightly interfere with a jury's factual findings.Submissions[12] Mr Kaye, for Mr Neems, accepted there was sufficient evidence for the jury to conclude that Mr Neems had possession of the pseudoephedrine in the car. But, Mr Kaye argued, no jury could have been satisfied, having regard to all of the evidence, that Mr Neems knew the substance in the package was pseudoephedrine.[13] Mr Neems did not give evidence. He relied on a statement he made to Detective Bruce when he was apprehended and interviewed. Mr Neems said he had been set up. He said that he had gone to the Huntington Park address to take his business associate Reg a letter but on arrival realised he had in fact forgotten to bring it. Mr Neems said he was about to leave when Reg placed the package in the car and said to him that it contained clothes.[14] In support of his appeal, Mr Neems pointed to the extensive surveillance and interception evidence exposing the people through whose hands the package passed.4He highlighted the absence of surveillance evidence of any kind demonstrating Mr Neems' involvement in, or even connection with, the Zhang syndicate or any of2 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].3 R v Munro [2007] NZCA 510, [2008] 2 NZLR 87 at [25].4 For example, a communication between a Mr Ma (on behalf of Mr Zhang) and L, and then a communication between L and Mr Sharp in which Mr Sharp advised L that there were"22 people coming to dinner".its members. There was also no evidence that Mr Neems had touched the package. There was no evidence that he was involved in an exchange of money in relation to the package. Indeed, even after a search of his home, the police found no evidence that Mr Neems was involved in any way in the drug trade except for the package. On the contrary, Mr Kaye argued, the suggestion that Mr Neems thought he was collecting clothes was supported by the fact that there were two black plastic bags of clothes in the back seat of the Holden.[15] Finally Mr Kaye pointed out that although the police observed the "unknown male", whom Mr Neems called Reg, reaching in the boot of the Mercedes retrieving the package, Reg was never questioned, arrested or charged with any offence.[16] While Mr Kaye accepted that the presence of the package in Mr Neems' carcreated real suspicion that Mr Neems knew that it contained pseudoephedrine, he argued there were just too many gaps in the evidence, taken as a whole, for a jury to be sure that he knew.[17] The Crown argued (as it did at trial) that Mr Neems' explanation was weakand unrealistic. The Crown argued that those involved in the syndicate would never have put drugs to that value into the car of the unsuspecting Mr Neems with no morethan the "hope that whatever was going to happen next would". The suggestiondefied logic.[18] Further, the Crown argued that the lack of evidence of connection to others in the supply chain was not significant. Such a situation is not uncommon, especially for lower-level operatives.[19] In the end, the Crown argued, the high threshold for establishing an unreasonable verdict is not met here.Analysis[20] We accept that Mr Neems' account of events was one the jury could haveaccepted. Toogood J said as much in his summing-up. He said:And while it is entirely a matter for you, members of the jury, you may think [the submission that the Crown's case falls short of proof beyond reasonabledoubt] is a powerful submission and you have to think very carefully whether the Crown has proved this charge against Mr Neems.[21] But a plausible defence does not make rejection of it by a jury unreasonable. As we have said, reasonable minds can differ on the interpretation of evidence.[22] It is plain that the jury did not believe the explanation Mr Neems gave to Detective Bruce when he was apprehended. That choice was open to its members. Mr Neems refused to provide an evidential video interview (this was his right ofcourse) so Detective Bruce's written notes of Mr Neems' responses to questions putto him at the side of the road when he was apprehended, and then later at the police station when a brief interview was conducted, was all that was available. Detective Bruce's notes in this regard were admitted into evidence by consent and their contents were not the subject of challenge or further question by Mr Neems'counsel.[23] Mr Neems explained that Reg was the "boss" of a brothel known as Club 5Band that he (Neems) had been renovating the lower floor of Club 5B for the purposeof opening a café. At first he complained he had been set up because Reg's childrenhad been difficult to deal with but he did not expand on that explanation. Curiously,at the end of the interview and after a review of the Detective's notes of it,Mr Neems denied attributing the set-up directly to Reg or to any person in particular. He said that the only difficulty he had was with Reg's daughter. Again no furtherexplanation beyond that was given.[24] As we have noted, Mr Neems said he had gone to the address in Huntington Park intending to bring a letter. But on arrival he discovered he had left the letter behind. He said he was about to leave when Reg advised him that he (Reg)had left some clothes in Mr Neems' car. Detective Bruce then recorded:I asked the Defendant Neems what he was supposed to do with the clothes? He responded by shaking his head and offering no further comment.[25] It is hardly surprising that the jury did not accept this explanation. It was brief to the point of cryptic. The jury was entitled to take the view that a trulyinnocent explanation would have contained more credible detail than was provided. The presence of other clothing in bags in the back seat of the car, while helpful,unsurprisingly failed to overcome the essential deficiency in Mr Neems' explanation.[26] It follows that once Mr Neems' explanation was set to one side as lackingcredibility, the remaining Crown evidence provided a solid basis from which the jury could infer that Mr Neems knew the package contained pseudoephedrine. Indeed, the inference was irresistible. That was the essential problem with Mr Neems' case.The situation he was in called for a believable explanation. This was not because he bore the burden of proof, but because the presence of 4.9 kilograms of Contac-NT inthe passenger's footwell in his car was simply too suspicious to be left unexplained.As the Crown submitted, why would the other suppliers leave such a valuable package in the car of a person who (apparently) thought it was clothes? That ruse would be over once Mr Neems picked the package up. And then they stood to lose the package. In these circumstances, the only way for Mr Neems to furnish the jury with a reasonable doubt was to set out a sufficiently credible explanation. The explanation entirely lacked that character.[27] It is true that there were no corroborating observations, interceptions or searches and that this distinguished Mr Neems from the others involved. But this simply suggested that Mr Neems was probably not a core member of the syndicate or a regular participant in its activities. Again, this could not have overcome the absence of a credible explanation for the presence of the drug.[28] Mr Neems' appeal against conviction must be dismissed accordingly.The sentence appeals — Mr Sharp[29] Mr Sharp filed his appeal against sentence out of time and seeks an extension accordingly. The Crown does not oppose and we consider it is in order for an extension to be granted. Leave is also sought to amend the grounds of appeal. Once again, we consider it appropriate that leave be granted in this respect.[30] The charges against Mr Sharp are in two groups. There were 12 pseudoephedrine-related offences relating to 12 transactions involving a total of83 sets of Contac-NT, containing approximately 7.5 kilograms of pseudoephedrine. This pseudoephedrine had a street value of $664,000. Mr Sharp pleaded guilty to these charges prior to trial.[31] The sentencing Judge, Toogood J, noted that the pseudoephedrine which was the subject of the 12 charges was capable of producing between $3.7 million and $5.6 million worth of methamphetamine.5[32] The second category of offences related to the manufacture ofmethamphetamine at Mr Sharp's home. Mr Sharp was found guilty ofmanufacturing methamphetamine and possessing equipment, materials and precursors for the production of methamphetamine.[33] Toogood J accepted that Mr Sharp onsold some of the pseudoephedrine for profit and used some of it to manufacture methamphetamine at his home. The manufacturing was undertaken jointly with Mr Loke.The sentencing decision[34] In relation to the pseudoephedrine offences, Toogood J adopted the starting point suggested by Mr Sharp's counsel of seven years' imprisonment. A 20-per-centdiscount for guilty pleas produced an end sentence of five years and seven months'imprisonment.[35] On the methamphetamine offences, Mr Sharp was sentenced on the basis that 112 grams of methamphetamine were found at his house. The Judge found that, while Mr Sharp may not have been the actual cook, he was an active assistant in the manufacturing process on the evidence. The amount found fell within band 2 of R v Fatu.6 The Judge considered that the manufacturing operation was significant and sophisticated. He noted that in light of the nature and scale of the equipment discovered, manufacture had occurred more than once in the past and would have continued into the future but for the apprehension. He also noted that cash of$82,000 was found at the premises of which $28,000 "is said to have belonged to"5 R v Zhang [2015] NZHC 2325 at [80].6 R v Fatu [2006] 2 NZLR 72 (CA) at [43].Mr Sharp. Finally, he recorded as an aggravating factor that Mr Sharp's childrenresided at the house and there was evidence of contamination of their bedroom including on a cot.[36] A starting point of seven years and six months' imprisonment was adoptedwith respect to the methamphetamine offending.[37] The two sets of sentences were treated cumulatively suggesting an overall starting point of 13 years and one month but this was reduced on a totality basis to 10 years and six months. The remaining methamphetamine charges relating to equipment, material and precursors were the subject of concurrent sentences of three years' imprisonment.[38] The Judge discussed Mr Sharp's personal circumstances briefly but refused togive a discount for previous good character, absence of relevant convictions, remorse and insight. Relying on R v Wallace,7 Toogood J considered that accountability and deterrence had to be the dominant considerations in the sentence.[39] A nine-month discount was then given for 16 and a half months spent on 24-hour electronically-monitored bail. This produced a final sentence of nine yearsand nine months' imprisonment.[40] An MPI of five years was imposed as Mr Sharp's offending involved a large quantity of drugs and his own avarice led to him putting his children's lives at risk.The appeal[41] To succeed, Mr Sharp must establish that an error was made and that a different sentence should be imposed.8[42] Mr Leabourne, for Mr Sharp, advanced three separate grounds in his appeal against sentence. They were:7 R v Wallace [1999] 3 NZLR 159 (CA) at [25].8 Criminal Procedure Act 2011, ss 244 and 250.(a) The Judge erred in failing to give credit for prior good character and lack of relevant previous convictions. This was the key distinguishing feature between the circumstances of Mr Sharp and his co-accused Mr Loke. The failure to give credit for Mr Sharp's good characterdistorted relativities between the two sentences.(b) The Judge erred by failing to give sufficient recognition to the totality principle and thus the sentence was manifestly excessive.(c) An MPI was unnecessary in the circumstances.Analysis[43] On the comparison with Mr Loke, it is true that Mr Loke had an extensive background of similar offending (this was an important element of his sentence) while Mr Sharp did not, but two points counter the weight of that comparison. The first is that Mr Sharp also pleaded guilty to a clutch of very significant pseudoephedrine charges. Mr Loke did not have this extra dimension to his offending. And second, it has long been established that personal circumstances are most unlikely to count significantly in offending of this nature.9 The short point is any prior offending-based distinction between the circumstances of Mr Loke and Mr Sharp was swamped by the additional offending for which Mr Sharp had to be held accountable.[44] The totality argument is equally lacking in merit. The fact is that Mr Sharp'soffending was on a large scale and at multiple levels. Toogood J sentenced on that basis. The Crown is correct that a starting point in the region of nine years (advocated for by Mr Leabourn) would not have been sufficient in light of the scale and complexity of this offending together with the aggravating factor of the exposureof Mr Sharp's children to significant physical risk.[45] Once these issues are set to one side, an MPI of the order of approximately 50 per cent was almost inevitable. Accountability for the various offending justified9 R v Wang [2014] NZCA 409 at [28]; R v Wallace, above n 7, at [25] and R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [12].an MPI as did denunciation of the offending itself and the risk it posed to Mr Sharp'schildren.10 The MPI period is, we accept, slightly above the commonly imposed 50 per cent but any adjustment would be no more than tinkering and the MPI imposed was within range.11[46] The appeal is dismissed.Mr Chen[47] Mr Chen appeals only in respect of the MPI of four years and three months'imprisonment, or 50 per cent of his end sentence of eight years and six months.[48] Mr Chen was found guilty of supplying pseudoephedrine and possessing it for supply in relation to 13 pseudoephedrine transactions involving at least 125 sets, or 27.9 kilograms, of Contac-NT capable of producing 11.25 kilograms of pseudoephedrine. The street value of 125 sets is approximately $1 million.The sentencing decision[49] In his sentencing remarks, Toogood J described Mr Chen as a "wholesale distributor",12 receiving products directly from Mr Zhang or his agent. The pseudoephedrine supplied was capable of producing between $5.6 million and $8 million worth of methamphetamine. A starting point of nine years' imprisonment was adopted with a six-month discount for strict bail conditions leaving a final sentence of eight years and six months.[50] In relation to the MPI, Toogood J considered there were positive aspects to Mr Chen's situation: insight, low risk of reoffending and of harming the community, employment, acceptance of full responsibility and appreciation of the impact of the offending, and a willingness to undertake further counselling. Nonetheless, the Judge considered that the primary purposes of sentencing for commercial dealing on this scale were to hold Mr Chen accountable for the harm of this offending upon10 See Sentencing Act 2002, s 86(2).11 Section 86(4)(a).12 R v Zhang, above n 5, at [63].the community and to deter others from engaging in similar activity. He accordinglyimposed an MPI of four years and three months' imprisonment.Submissions[51] Ms Cooper, for Mr Chen, submitted the requirements of s 86 of the Sentencing Act 2002 were not satisfied in this case. She submitted that drug-related prison sentences of less than nine years rarely attracted MPIs (relying on R v Anslowand Fleming v R).13 Ms Cooper also submitted that an MPI was not necessary to hold Mr Chen accountable in terms of s 86(2)(a) as his previous offending was not as serious as this offending and his limited language skills would make a lengthier prison term more harsh. As to denunciation (s 86(2)(b)), the prison term itself achieved that objective without the need for an MPI. Similarly, Ms Cooper argued, deterrence (in terms of s 86(2)(c)) is achieved through the lengthy prison term rather than the MPI. Finally Ms Cooper submitted there was no evidence that the community needed protecting from Mr Chen (s 86(d)). Mr Chen was so low risk that he was, ironically, ineligible for departmental programmes.Analysis[52] We do not consider that it is appropriate to disturb the MPI imposed on Mr Chen. While the 70 sentencing decisions reviewed in R v Anslow suggest that in serious drug offending before 2005, MPIs were usually only imposed with sentences of at least nine years, a trend is not a rule. This Court said as much the next year inR v Richardson:14 Anslow should not be understood as holding that a minimum period of imprisonment is inappropriate unless the term is nine years or more. The observations in Anslow merely reflect the reality that offending which is serious enough to warrant the imposition of a minimum period of imprisonment will generally attract a prison sentence of nine years or more.[53] The same point was made again more recently in Solicitor-General v Huang:1513 R v Anslow CA182/05, 18 November 2005 at [27]; and Fleming v R [2011] NZCA 646 at [20].14 R v Richardson CA85/06, 16 August 2006 at [26].15 Solicitor-General v Huang [2011] NZCA 436 at [12] (footnotes omitted).The Court in Anslow noted the "striking" near-uniformity of approach in the imposition of a minimum term in relation to sentences of imprisonment of nine years or more. Such a figure is treated as a guide in relation to the imposition of minimum term, it being observed in R v Richardson thatAnslow was not to be understood as holding that a minimum period is inappropriate unless the term is nine years or more.[54] While we have not updated Anslow's survey of the authorities, the Crown did point to the very recent decision of this Court in Ma v R16 (relating to another Operation Gem offender) in which the sentence imposed on the appellant (who was acourier) was reduced from nine years and four months' imprisonment to eight yearsand six months (the same sentence as in this case). But a 50-per-cent MPI was nonetheless upheld.[55] Further, we do not accept the proposition that accountability under s 86(2)(a) does not require an MPI in this case because the appellant has no history of offending on the current scale and his limited English would make his jail term more harsh. As the courts have said consistently both at trial and appellate level, accountability and deterrence are dominant elements in sentencing for serious drug offending.17 This will generally be true also for the question of imposition of an MPI except in particularly deserving cases.[56] The same comment may be made with respect to denunciation under s 86(2)(b). These are cases in which a general denunciative effect is important. As this Court noted in Solicitor-General v Huang, pseudoephedrine trading is an international business and stern signals are required to ensure New Zealand is not targeted because it is perceived as a soft touch.18 As for deterrence under s 86(2)(c), we do not agree that the length of sentence is the only signal that is required. The impact on sentence of an MPI will be well understood by businessmen engaged in the drug distribution trade.[57] Finally, we accept that Mr Chen's circumstances do not suggest furtherprotection for the community is needed through his incapacitation. If that alone16 Ma v R [2016] NZCA 362.17 R v Wallace, above n 7, at [25]; and R v Jarden, above n 9, at [12].18 Solicitor-General v Huang, above n 15, at [21] citing R v Davis CA440/04, 20 October 2005 at [67].were the relevant consideration, in this case an MPI could scarcely be justified. In reality, however, the other factors in s 86 are dominant in this case.[58] The appeal is dismissed accordingly.Mr Loke[59] Mr Loke was convicted of manufacturing methamphetamine and three charges of possessing precursors, equipment and materials for manufacture at Mr Sharp's address. In addition, he was found guilty of possessing the 112 grams ofmethamphetamine found there. Of the cash found at the premises, the Judge considered that $54,000 belonged to Mr Loke. The Judge inferred from the cash that, in addition to the 112 grams, further methamphetamine had been manufactured at the address in the past. The Judge considered that although the children affectedby the operation of this clandestine lab were not Mr Loke's and (Mr Loke said at least) he did not live there, the important point was that Mr Loke manufactured this dangerous substance in an environment where children were put at risk of serious harm. A starting point of seven years and six months' imprisonment was taken.[60] Toogood J noted that Mr Loke had a number of drug-related convictions from 2002 to 2014. A six-month uplift was imposed. The Judge then rejected the submission that a discount for rehabilitative efforts and domestic circumstances was justified. But he reduced the end sentence by nine months to reflect restrictive bail terms over an extended period. This left an end sentence of seven years and three months.[61] Concurrent sentences of three years' imprisonment were imposed for each ofthe equipment, material and precursor substances charges.[62] An MPI of four years was then imposed. Toogood J referred to the Probation Officer's report assessing Mr Loke as presenting a high risk of reoffendingand of harming others because he had issues with drug addiction and had reoffended while in a live-in drug rehabilitation programme. On this basis, Toogood J found that the standard parole eligibility after one third of sentence was insufficient to hold Mr Loke accountable for the harm he caused to the community, and to further theaims of personal and general deterrence. The four-year MPI represented 55 per cent of the sentence.Submissions[63] Ms Cooper argued (again relying on Anslow) that MPIs were seldom imposedin relation to sentences for drug offending of less than nine years' imprisonment and Mr Loke's sentence was well short of that. Nor, she argued, could it be justified interms of the factors set out in s 86(2). The offending in this case was, she submitted, squarely in the middle of band 2 of R v Fatu.19 It was thus insufficiently serious to attract an MPI. The sentence was sufficiently long, however, to hold Mr Loke appropriately accountable in terms of s 86(2)(a) and the necessity for personal deterrence had already been factored into the six-month uplift for previous convictions.[64] It was also argued that the fact that the MPI was at least five per cent higher than all other MPIs could not be justified. There was no proper basis upon which to impose this comparatively harsh penalty.[65] Finally, Ms Cooper argued that when considering whether he should impose an MPI, the Judge should have taken greater account of the rehabilitative steps that Mr Loke had undertaken, including time in a residential rehabilitative centre.Analysis[66] Two elements of the MPI in this case are distinctive with respect to Mr Loke. The first is that Toogood J imposed an MPI on a comparatively short prison sentence of seven years and three months; and, second, the MPI was five per cent longer than most of the other MPIs imposed for those sentenced in the context of Operation Gem. But as the Crown submitted, Mr Loke was the only one of the appellants to have a significant list of previous drug-related convictions. And he was the only one assessed by the Probation Service to present a high risk of reoffending. This made personal deterrence and accountability very important factors, both in relation to the prison sentence itself and the MPI.19 R v Fatu, above n 6, at [43].[67] It is not correct to suggest that the six-month uplift in Mr Loke's sentence totake account of previous convictions is the only way in which that aggravating factor may be reflected in the overall sentence. Indeed, s 86 was designed in part to address sentencing for recidivist offending. As this Court said in R v Taueki:20Once it becomes necessary to address the length of the minimum period,the Court is required to take into account (to the extent they are relevant to the particular case) all of the purposes of sentencing in s 7 [of the Sentencing Act] and the mandatory requirements of ss 8 and 9, just as it must take them into account in setting the finite term. The setting of the minimum period of imprisonment requires a similar analysis to that required for setting the nominal sentence. The factors in ss 8 and 9 are relevant to both exercises. The fact that they are taken into account in setting the minimum period, as well as the maximum period, does not lead to double counting, but rather reflects the dual exercise which the Court must undertake.[68] The fact that the MPI is set at 55 per cent reflects Mr Loke's distinctive and problematic background. It is within the sentencing Judge's discretion to choose toadopt this technique for reflecting that background. We see no error in this choice.[69] The appeal is dismissed.Result[70] Mr Sharp is granted an extension of time to appeal and leave to amend his grounds of appeal. However, all appeals are dismissed.Solicitors:Crown Law Office, Wellington for Respondent20 R v Taueki [2005] 3 NZLR 372 (CA) at [56] (citations omitted).