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The Queen v Laungaue [2006] NZCA 237 (1 September 2006)

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The Queen v Laungaue [2006] NZCA 237 (1 September 2006)

Last Updated: 6 September 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA32/06

THE QUEEN

v

SIONE LAUNGAUE

Hearing: 23 August 2006

Court: Chambers, Randerson and John Hansen JJ

Counsel: E P Paul for Appellant
H D M Lawry for Crown

Judgment: 1 September 2006 at 11 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Manslaughter in Mangere

[1] On 2 October 2004, Sione Laungaue, the appellant, and two of his friends, Siosifa Tupou and Sefanaia Tupou, were part of a group drinking gin and smoking drugs at a property in Mangere. After the group became rowdy, the owner of the property asked everyone to leave. While the group was walking along the road, a fight broke out. People living in neighbouring properties became concerned. One rang the police. Another, Blair Harvey, came out of his home and walked up his driveway, evidently with the intent of remonstrating with the group about the fighting and the disturbance they were causing. Mr Harvey carried a sword, presumably for protection.
[2] Verbal insults passed in both directions. Then Mr Laungaue and his two friends turned on Mr Harvey. They quickly overpowered him. He fell to the ground. He was then subjected to a bad beating. By this stage in the fight, Mr Laungaue had managed to seize Mr Harvey’s sword. He swung the sword at Mr Harvey.
[3] Mr Harvey eventually managed to get to his feet and stagger back towards his driveway. The three men pursued him and then set upon him again. It was probably at this point, the trial judge, Cooper J, found, that Mr Laungaue swung the sword again and dealt the fatal blow. The sword penetrated Mr Harvey’s left eye, entering deep into his brain. He died as a result of the internal bleeding caused by that wound.
[4] Mr Laungaue was charged with murder. Following a trial in the High Court at Auckland, a jury found him not guilty of murder, but guilty of manslaughter. Cooper J sentenced him to eight and a half years’ imprisonment. He also ordered that Mr Laungaue must serve a minimum period of imprisonment of four years three months.
[5] From those two sentences, Mr Laungaue now appeals.

Issues on the appeal

[6] There are four issues on this appeal.
[7] The first is: did the judge sentence on the wrong factual basis?
[8] Secondly, was the judge’s starting point (nine years’ imprisonment) too high?
[9] Thirdly, was the sentence too high given the sentences imposed on Mr Laungaue’s co-offenders?
[10] Finally, was this an appropriate case for an order of a minimum period of imprisonment (MPI)?
[11] We shall consider the issues in turn.

Did the judge sentence on the wrong factual basis?

[12] Mr Paul, for Mr Laungaue, submitted that the judge in sentencing had proceeded on the basis that "the jury [had] found that the fatal wound was intentional". He submitted that the judge erred in reaching that finding. He submitted that the jury’s verdict could have been reached on the basis of a finding that Mr Laungaue had been "involved in an unlawful act (the assault) and that a death occurred".
[13] We do not know the exact basis upon which the jury found Mr Laungaue guilty of manslaughter. In those circumstances, it is the trial judge’s responsibility to work out for himself or herself what must have happened, consistent with the jury’s verdict. This is exactly what Cooper J did. He found it unlikely that the jury had reached a verdict of manslaughter through the provocation route. He noted that the jury had clearly eliminated the possibility of self-defence, an issue which the judge had left to them. In the end, the judge concluded that Mr Laungaue did intentionally attack Mr Harvey with the sword, but did not mean to kill him. He further concluded that the jury must have recognised a possibility that Mr Laungaue had not knowingly caused Mr Harvey bodily injury which he (Mr Laungaue) knew was likely to cause death.
[14] The judge was fully entitled to reach that conclusion. He was not bound to approach the sentencing on the basis that the use of the sword was entirely accidental. There would have been no basis for a manslaughter conviction at all, given the cause of death, if the jury had concluded that the fatal blow had been struck accidentally.
[15] The first ground of appeal fails.

Was the starting point too high?

[16] His Honour fixed a starting point of nine years. In reaching that view, His Honour considered a number of authorities. They reflected the wide range of circumstances which fall within the manslaughter umbrella. Cooper J noted this court’s decision in R v Rapira [2003] 3 NZLR 794 at [128]:

Culpability is higher in cases where manslaughter results from intentional harm. In such cases, the sentence imposed must reflect the need for deterrence of intentional conduct which risks serious harm or death.

[17] His Honour considered the present case came within that category. He observed that the circumstances of this case were such "that it may well be said that Mr Laungaue was fortunate to escape conviction for murder": HC AK CRI 2004-092-011142 15 December 2005 at [28]. He noted that there was "no element of what might be described as pre-meditation" and that it was Mr Harvey himself who tragically brought the sword to the scene. His ultimate conclusion was (at [28]):

So it cannot properly be viewed as a case in the most serious category, but it needs to be borne in mind that life imprisonment is the maximum penalty and this is a serious case.

[18] Mr Paul, on appeal, submitted that the final sentence in this case should have been in the range of "six to seven years". Mr Paul did not submit a specific starting point. There appears to be no dispute about the allowance Cooper J gave for mitigating circumstances (six months). Accordingly, we infer that Mr Paul’s starting point would be in the vicinity of six and a half years to seven and a half years.
[19] It must first be noted that Mr Paul’s submissions were predicated on a different view of the facts from the view adopted by Cooper J. We have already discussed that submission in an earlier part of these reasons and we have rejected Mr Paul’s challenge on that ground.
[20] So the question is whether, on Cooper J’s view of the overall circumstances, the starting point was too high. We are satisfied it was not. We have reviewed a number of appellate authorities where this court approved starting points of nine years or higher in broadly comparable circumstances: see, for example, R v Parata CA291/95 16 May 1996, R v Nicholson CA490/96 17 March 1997, and R v Blackmore CA29/05 18 May 2005.
[21] Mr Paul relied on six authorities in support of his submission that the starting point was too high. Two of those were High Court sentencings. We do not intend to discuss those. This court has repeatedly said that there is no point in citing on appeal High Court sentencing decisions, except in circumstances where there is no or little appellate authority: R v Murphy CA198/05 23 November 2005 at [24]; R v Nepia CA88/05 23 November 2005 at [36]. This refusal to be drawn into High Court authorities is not a result of appellate arrogance; rather, it is to keep appeals against sentence focused. If we were generally to admit reference to High Court sentencings, we would quickly become deluged by authorities, with a risk that each side would selectively choose from the scores or hundreds available those sentencings most favourable to the case being advanced on appeal.
[22] We do not intend to discuss the appellate authorities in detail. The first Mr Paul relied on was R v Kumeroa CA64/01 16 May 2001. This was a Solicitor-General appeal. This court regarded the sentence as "lenient" (at [27]), but not so unduly lenient as to justify appellate interference. The offending in that case was much less serious than here. This court noted that "the actual degree of violence, while serious, was not prolonged or aggravated by other circumstances such as the use of a weapon": at [15]. The court also noted that the victim died from "a relatively unusual cause, namely a kick or blow to the carotid artery": at [3]. Otherwise, there were no significant injuries. It was also relevant that Mr Kumeroa was only 16 at the time of the offending.
[23] R v Mesui CA471/99 and CA485/99 2 December 1999 was another Solicitor-General appeal. Again, the offending was less serious than the present case, with elements of provocation and self-defence which are not present here: at [13].
[24] Mr Paul’s third case was Solicitor-General v Kane CA154/98 23 September 1998. But the facts of that case were quite different from here. That was a case where Mr Kane was acting in self-defence, but used more force than was reasonably necessary in his defence: at 11. Before he picked up the knife which caused the victim’s death, Mr Kane had been set upon by the deceased and another man. Mr Kane was a man with no previous convictions. This had been the first time he had ever been involved in a fight.
[25] Finally, Mr Paul referred to R v Manukau CA204/04 and CA207/04 15 November 2004. In that case, the trial judge had sentenced Mr Manukau to seven years’ imprisonment on a charge of manslaughter. While Mr Manukau did not appeal against sentence, the Crown cross-appealed (successfully) on the judge’s failure to impose an MPI. The seven year sentence accordingly did not attract direct appellate scrutiny, although this court remarked that the sentence seemed "very light": at [60]. This court observed that it appeared to reflect a view "that the appellant was indeed acting in defence of himself and his brother but that the force he used went beyond what was reasonable". That element is not present in this case.
[26] We acknowledge that the starting point in all those cases was lower than the starting point chosen by the judge in the present case. But, in our view, that is explicable on the basis that the offending in each of those cases was less serious than the offending here and the offender’s culpability lower. The offending in each of those cases had mitigatory features not present here. Further, in at least two of the cases, the sentences imposed were regarded by this court as lenient.
[27] Mr Paul has not satisfied us that either the starting point or the end sentence was outside the permissible range. This ground of appeal fails.

Was the sentence too high given the sentences imposed on Mr Laungaue’s co-offenders?

[28] Mr Paul’s third point was that the sentence was too high compared with the sentences received by Mr Laungaue’s co-offenders, Siosifa and Sefanaia Tupou. The Tupou brothers had originally been charged as parties to the murder. During the course of the trial, Cooper J discharged them under s 347(3) of the Crimes Act 1961. The Crown was given the opportunity to proffer alternative charges against them. Both then pleaded guilty to causing grievous bodily harm with intent to cause such grievous bodily harm. The judge sentenced Siosifa Tupou to four and a half years’ imprisonment. He sentenced Sefanaia Tupou to four years nine months’ imprisonment. That longer sentence reflected the fact that he was also being sentenced on a robbery charge, for which he was sentenced to six months’ imprisonment (concurrent).
[29] Mr Paul had not signalled in advance that disparity of sentences was to be a ground of appeal. He should have: see Court of Appeal (Criminal) Rules 2001, r 12C. The reason that must be signalled is so that the registrar of this court can obtain all documents relevant to the sentence imposed on the appellant’s co-offender: see r 13(2). As a result, we do not have available to us the Tupou brothers’ pre-sentence reports.
[30] Notwithstanding the breach of the rules, we deal with this ground of appeal. The standard test for appellate intervention on the ground of disparity was stated by this court in R v Lawson [1982] 2 NZLR 219 at 223:

[A] marked difference in the sentences imposed on co-offenders, and for which no justification can be shown, may be of importance to the administration of justice generally in that such a marked and unjustified difference will tend to bring the administration of justice into disrepute. The Courts must bear in mind that public confidence in the administration of justice is best preserved if justice appears to be administered even-handedly.

[31] The court went on to say:

It is not merely whether the offender thinks that he has been unfairly treated, but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.

[32] That test is not met here. There was a marked difference between the culpability of Mr Laungaue and the culpability of the Tupou brothers. First, only Mr Laungaue wielded the weapon. The Tupou brothers’ offending, while serious, was confined to kicking and punching. Mr Harvey would still be alive had the beating stopped with kicks and punches.
[33] Secondly, only Mr Laungaue was responsible for the death of Mr Harvey. The judge concluded that the Tupou brothers could not be liable as parties to the killing.
[34] Thirdly, the charges the Tupou brothers eventually faced were lesser charges than the charge on which Mr Laungaue was convicted. Their charge carried a lower maximum penalty. And, of course, when the proper charge was laid, they immediately pleaded guilty.
[35] We are satisfied there are very good reasons for the difference between the sentence imposed on Mr Laungaue and the sentences imposed on the co-offenders. The third ground of appeal fails.

Was this an appropriate case for a minimum period of imprisonment?

[36] On an appeal against the imposition or level of an MPI, the appellant must show either:

(a) that the sentencing judge misapplied the law, took into account irrelevant considerations, or failed to take into account relevant considerations; or

(b) the imposition of an MPI or the level of the MPI was inconsistent with what had occurred in similar cases: Sentencing Act, s 8(e).

[37] Mr Paul’s argument proceeded on neither basis. Rather, he submitted that the "harm done to the victim and his family [was] as it is in any case of manslaughter". He added: "There was no particular factor that makes this worse than any other case." In making that submission, Mr Paul was harking back to s 86(3) of the Sentencing Act as originally enacted:

(3) For the purposes of this section, the circumstances of an offence may be regarded as sufficiently serious [to justify an MPI] if the court is satisfied that the circumstances take the offence out of the ordinary range of offending of the particular kind.

[38] That subsection, which proved extremely difficult to apply, was repealed in 2004: see Sentencing Amendment Act 2004, s 7. At the time of Mr Laungaue’s offending, that was not part of the law.
[39] The test now for the imposition of an MPI is much more open-textured. There can be no doubt that Cooper J correctly applied his mind to the relevant considerations, which he listed in his sentencing notes at [37]. He concluded that Mr Laungaue’s becoming eligible for parole after only one-third of his sentence would be an insufficient period of imprisonment given the need to hold him accountable for the harm done to Mr Harvey, his parents and brother. He also thought it would be insufficient to denounce the conduct and to deter others from committing similar offences. He concluded at [38]:

There is, I think, a high level of concern in the South Auckland community about serious acts of violence on the streets. Such violence, often fuelled by alcohol, or, as in this case, by drugs, leading to tragic loss of life, is too common an occurrence. Such conduct I think must be strongly denounced and the need to deter others from acting in this way must be recognised.

[40] Those views were open to the judge.
[41] The level of MPI was not out of line with other cases. Manslaughter, as a serious violent offence, automatically carried a two-thirds non-parole period prior to the enactment of the Sentencing Act: Criminal Justice Act 1985, ss 80 and 90. Since the Sentencing Act, MPIs have regularly been imposed in manslaughter cases: Manukau (50% imposed on a Solicitor-General appeal); R v Edwards [2005] 2 NZLR 709 (50%); Blackmore (50%); R v Robertson CA472/04 14 December 2005 (50%); R v Bennet CA457/03 23 September 2004 (60%).
[42] As this court noted in R v Taueki [2005] 3 NZLR 372, in cases of serious violence, "it can be expected that minimum periods of imprisonment will not be rare or even uncommon": at [57]. Indeed, the court went on to note at [58]:

There is no presumption against the imposition of a minimum period of imprisonment of two-thirds of the sentence, and no reason for inhibition about imposing such a minimum period in appropriate cases, particularly where, as in the present context, offending involves the intentional infliction of serious injury.

[43] Cooper J was entitled to conclude that this was an appropriate case for the imposition of an MPI fixed at 50% of the nominal sentence.
[44] This ground of appeal too must fail.

Solicitors:
Public Defence Service, Manukau City, for Appellant
Crown Law Office, Wellington

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[1]	On 2 October 2004, Sione Laungaue, the appellant, and two of his friends, Siosifa Tupou and Sefanaia Tupou, were part of a group drinking gin and smoking drugs at a property in Mangere. After the group became rowdy, the owner of the property asked everyone to leave. While the group was walking along the road, a fight broke out. People living in neighbouring properties became concerned. One rang the police. Another, Blair Harvey, came out of his home and walked up his driveway, evidently with the intent of remonstrating with the group about the fighting and the disturbance they were causing. Mr Harvey carried a sword, presumably for protection.
[2]	Verbal insults passed in both directions. Then Mr Laungaue and his two friends turned on Mr Harvey. They quickly overpowered him. He fell to the ground. He was then subjected to a bad beating. By this stage in the fight, Mr Laungaue had managed to seize Mr Harvey’s sword. He swung the sword at Mr Harvey.
[3]	Mr Harvey eventually managed to get to his feet and stagger back towards his driveway. The three men pursued him and then set upon him again. It was probably at this point, the trial judge, Cooper J, found, that Mr Laungaue swung the sword again and dealt the fatal blow. The sword penetrated Mr Harvey’s left eye, entering deep into his brain. He died as a result of the internal bleeding caused by that wound.
[4]	Mr Laungaue was charged with murder. Following a trial in the High Court at Auckland, a jury found him not guilty of murder, but guilty of manslaughter. Cooper J sentenced him to eight and a half years’ imprisonment. He also ordered that Mr Laungaue must serve a minimum period of imprisonment of four years three months.
[5]	From those two sentences, Mr Laungaue now appeals.

[6]	There are four issues on this appeal.
[7]	The first is: did the judge sentence on the wrong factual basis?
[8]	Secondly, was the judge’s starting point (nine years’ imprisonment) too high?
[9]	Thirdly, was the sentence too high given the sentences imposed on Mr Laungaue’s co-offenders?
[10]	Finally, was this an appropriate case for an order of a minimum period of imprisonment (MPI)?
[11]	We shall consider the issues in turn.

[12]	Mr Paul, for Mr Laungaue, submitted that the judge in sentencing had proceeded on the basis that "the jury [had] found that the fatal wound was intentional". He submitted that the judge erred in reaching that finding. He submitted that the jury’s verdict could have been reached on the basis of a finding that Mr Laungaue had been "involved in an unlawful act (the assault) and that a death occurred".
[13]	We do not know the exact basis upon which the jury found Mr Laungaue guilty of manslaughter. In those circumstances, it is the trial judge’s responsibility to work out for himself or herself what must have happened, consistent with the jury’s verdict. This is exactly what Cooper J did. He found it unlikely that the jury had reached a verdict of manslaughter through the provocation route. He noted that the jury had clearly eliminated the possibility of self-defence, an issue which the judge had left to them. In the end, the judge concluded that Mr Laungaue did intentionally attack Mr Harvey with the sword, but did not mean to kill him. He further concluded that the jury must have recognised a possibility that Mr Laungaue had not knowingly caused Mr Harvey bodily injury which he (Mr Laungaue) knew was likely to cause death.
[14]	The judge was fully entitled to reach that conclusion. He was not bound to approach the sentencing on the basis that the use of the sword was entirely accidental. There would have been no basis for a manslaughter conviction at all, given the cause of death, if the jury had concluded that the fatal blow had been struck accidentally.
[15]	The first ground of appeal fails.

[18]	Mr Paul, on appeal, submitted that the final sentence in this case should have been in the range of "six to seven years". Mr Paul did not submit a specific starting point. There appears to be no dispute about the allowance Cooper J gave for mitigating circumstances (six months). Accordingly, we infer that Mr Paul’s starting point would be in the vicinity of six and a half years to seven and a half years.
[19]	It must first be noted that Mr Paul’s submissions were predicated on a different view of the facts from the view adopted by Cooper J. We have already discussed that submission in an earlier part of these reasons and we have rejected Mr Paul’s challenge on that ground.
[20]	So the question is whether, on Cooper J’s view of the overall circumstances, the starting point was too high. We are satisfied it was not. We have reviewed a number of appellate authorities where this court approved starting points of nine years or higher in broadly comparable circumstances: see, for example, R v Parata CA291/95 16 May 1996, R v Nicholson CA490/96 17 March 1997, and R v Blackmore CA29/05 18 May 2005.
[21]	Mr Paul relied on six authorities in support of his submission that the starting point was too high. Two of those were High Court sentencings. We do not intend to discuss those. This court has repeatedly said that there is no point in citing on appeal High Court sentencing decisions, except in circumstances where there is no or little appellate authority: R v Murphy CA198/05 23 November 2005 at [24]; R v Nepia CA88/05 23 November 2005 at [36]. This refusal to be drawn into High Court authorities is not a result of appellate arrogance; rather, it is to keep appeals against sentence focused. If we were generally to admit reference to High Court sentencings, we would quickly become deluged by authorities, with a risk that each side would selectively choose from the scores or hundreds available those sentencings most favourable to the case being advanced on appeal.
[22]	We do not intend to discuss the appellate authorities in detail. The first Mr Paul relied on was R v Kumeroa CA64/01 16 May 2001. This was a Solicitor-General appeal. This court regarded the sentence as "lenient" (at [27]), but not so unduly lenient as to justify appellate interference. The offending in that case was much less serious than here. This court noted that "the actual degree of violence, while serious, was not prolonged or aggravated by other circumstances such as the use of a weapon": at [15]. The court also noted that the victim died from "a relatively unusual cause, namely a kick or blow to the carotid artery": at [3]. Otherwise, there were no significant injuries. It was also relevant that Mr Kumeroa was only 16 at the time of the offending.
[23]	R v Mesui CA471/99 and CA485/99 2 December 1999 was another Solicitor-General appeal. Again, the offending was less serious than the present case, with elements of provocation and self-defence which are not present here: at [13].
[24]	Mr Paul’s third case was Solicitor-General v Kane CA154/98 23 September 1998. But the facts of that case were quite different from here. That was a case where Mr Kane was acting in self-defence, but used more force than was reasonably necessary in his defence: at 11. Before he picked up the knife which caused the victim’s death, Mr Kane had been set upon by the deceased and another man. Mr Kane was a man with no previous convictions. This had been the first time he had ever been involved in a fight.
[25]	Finally, Mr Paul referred to R v Manukau CA204/04 and CA207/04 15 November 2004. In that case, the trial judge had sentenced Mr Manukau to seven years’ imprisonment on a charge of manslaughter. While Mr Manukau did not appeal against sentence, the Crown cross-appealed (successfully) on the judge’s failure to impose an MPI. The seven year sentence accordingly did not attract direct appellate scrutiny, although this court remarked that the sentence seemed "very light": at [60]. This court observed that it appeared to reflect a view "that the appellant was indeed acting in defence of himself and his brother but that the force he used went beyond what was reasonable". That element is not present in this case.
[26]	We acknowledge that the starting point in all those cases was lower than the starting point chosen by the judge in the present case. But, in our view, that is explicable on the basis that the offending in each of those cases was less serious than the offending here and the offender’s culpability lower. The offending in each of those cases had mitigatory features not present here. Further, in at least two of the cases, the sentences imposed were regarded by this court as lenient.
[27]	Mr Paul has not satisfied us that either the starting point or the end sentence was outside the permissible range. This ground of appeal fails.

[28]	Mr Paul’s third point was that the sentence was too high compared with the sentences received by Mr Laungaue’s co-offenders, Siosifa and Sefanaia Tupou. The Tupou brothers had originally been charged as parties to the murder. During the course of the trial, Cooper J discharged them under s 347(3) of the Crimes Act 1961. The Crown was given the opportunity to proffer alternative charges against them. Both then pleaded guilty to causing grievous bodily harm with intent to cause such grievous bodily harm. The judge sentenced Siosifa Tupou to four and a half years’ imprisonment. He sentenced Sefanaia Tupou to four years nine months’ imprisonment. That longer sentence reflected the fact that he was also being sentenced on a robbery charge, for which he was sentenced to six months’ imprisonment (concurrent).
[29]	Mr Paul had not signalled in advance that disparity of sentences was to be a ground of appeal. He should have: see Court of Appeal (Criminal) Rules 2001, r 12C. The reason that must be signalled is so that the registrar of this court can obtain all documents relevant to the sentence imposed on the appellant’s co-offender: see r 13(2). As a result, we do not have available to us the Tupou brothers’ pre-sentence reports.
[30]	Notwithstanding the breach of the rules, we deal with this ground of appeal. The standard test for appellate intervention on the ground of disparity was stated by this court in R v Lawson [1982] 2 NZLR 219 at 223:

[32]	That test is not met here. There was a marked difference between the culpability of Mr Laungaue and the culpability of the Tupou brothers. First, only Mr Laungaue wielded the weapon. The Tupou brothers’ offending, while serious, was confined to kicking and punching. Mr Harvey would still be alive had the beating stopped with kicks and punches.
[33]	Secondly, only Mr Laungaue was responsible for the death of Mr Harvey. The judge concluded that the Tupou brothers could not be liable as parties to the killing.
[34]	Thirdly, the charges the Tupou brothers eventually faced were lesser charges than the charge on which Mr Laungaue was convicted. Their charge carried a lower maximum penalty. And, of course, when the proper charge was laid, they immediately pleaded guilty.
[35]	We are satisfied there are very good reasons for the difference between the sentence imposed on Mr Laungaue and the sentences imposed on the co-offenders. The third ground of appeal fails.

[40]	Those views were open to the judge.
[41]	The level of MPI was not out of line with other cases. Manslaughter, as a serious violent offence, automatically carried a two-thirds non-parole period prior to the enactment of the Sentencing Act: Criminal Justice Act 1985, ss 80 and 90. Since the Sentencing Act, MPIs have regularly been imposed in manslaughter cases: Manukau (50% imposed on a Solicitor-General appeal); R v Edwards [2005] 2 NZLR 709 (50%); Blackmore (50%); R v Robertson CA472/04 14 December 2005 (50%); R v Bennet CA457/03 23 September 2004 (60%).
[42]	As this court noted in R v Taueki [2005] 3 NZLR 372, in cases of serious violence, "it can be expected that minimum periods of imprisonment will not be rare or even uncommon": at [57]. Indeed, the court went on to note at [58]:

[43]	Cooper J was entitled to conclude that this was an appropriate case for the imposition of an MPI fixed at 50% of the nominal sentence.
[44]	This ground of appeal too must fail.