Banaba v R [2016] NZCA 122 (13 April 2016)

Last Updated: 27 April 2016

IN THE COURT OF APPEAL OF NEW ZEALAND
CA472/2015 [2016] NZCA 122
BETWEEN	GRAEME KEVIN BANABA Appellant
AND	THE QUEEN Respondent

Hearing:	1 March 2016
Court:	Randerson, Peters and Collins JJ
Counsel:	M N Pecotic for Appellant B D Tantrum and S L K Shaw for Respondent
Judgment:	13 April 2016 at 9:30 am

JUDGMENT OF THE COURT

1. The sentence appeal is allowed in part.
2. The concurrent sentence of six years imprisonment on the charge of selling cannabis is quashed and replaced with a concurrent sentence of four years imprisonment.

100. The sentence appeal is otherwise dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

Introduction

[1] Mr Banaba appeals against a sentence of 13 years imprisonment with a minimum period of imprisonment (MPI) of five years and seven months imposed in relation to three charges of conspiring to import significant quantities^[1] of methamphetamine from Canada to New Zealand.^[2] Mr Banaba was also sentenced to a concurrent term of six years imprisonment in relation to a representative charge of selling cannabis.^[3]
[2] The sentences in question were imposed after Mr Banaba pleaded guilty on 4 February 2015. He was sentenced by Judge Ronayne in the Auckland District Court on 3 August 2015. Mr Banaba’s sentencing hearing was delayed until his two co-defendants, Mr Hoang and Mr Tran, were convicted following their trial. All three defendants were sentenced at the same time.

Grounds of appeal

[3] Mr Banaba appeals against his sentence on three grounds, namely:

• (a) Judge Ronayne erred by setting a starting point of 15 years imprisonment by relying on a summary of facts that had not been accepted by Mr Banaba;
• (b) the starting point of 15 years imprisonment was manifestly excessive; and
• (c) insufficient credit was given for personal mitigating factors, namely for Mr Banaba’s voluntary surrender of firearms, remorse and guilty pleas.

Background

[4] In this Court, Ms Pecotic, counsel for Mr Banaba, disputed issues in the summary of facts Judge Ronayne relied upon. It appears there were two summaries of facts. One summary of facts was prepared at the time Mr Banaba pleaded guilty and reflected those charges. Another more comprehensive summary of facts was prepared for the sentencing hearing at the Judge’s direction. According to Ms Pecotic, this second summary of facts was intended to capture the offending of both Mr Banaba and his co-defendants, although the first summary of facts does also refer to Mr Hoang and Mr Tran’s offending.
[5] Ms Pecotic advised us that the first summary of facts was not agreed. Mr Banaba accepted about 80 per cent of the contents of that summary of facts. The Crown’s position is that it cannot be sure that Mr Banaba signed the first summary of facts.
[6] In the circumstances, we allowed Ms Pecotic the opportunity to make further written submissions focusing on exactly what facts she says were never accepted by Mr Banaba. We gave the Crown the opportunity to reply.
[7] The following facts are not disputed:

On 11 December 2012 the Canadian Border Security Agency (CBSA) intercepted a shipment containing 12 shock absorbers at Vancouver Airport. An inspection of this parcel located 2.861 kilograms of methamphetamine secreted within the shock absorbers (Count 1).

...

On 14 December 2012 CBSA intercepted a second shipment containing 12 shock absorbers at Vancouver Airport. An inspection of this parcel located 3.889 kilograms of methamphetamine secreted within the shock absorbers (Count 2).

Both packages were addressed to recipients in Auckland.

[8] When it became apparent the consignments had not been received in New Zealand, Mr Hoang telephoned New Zealand Customs and the courier company trying to locate the consignments. The contents of Mr Hoang’s conversations with New Zealand Customs and the courier company were, on occasions, relayed to Mr Banaba.
[9] Further inquiries by the New Zealand Police revealed that the group were involved in the importation of three previous shipments of shock absorbers from Canada and that Mr Banaba had been involved in the third of those consignments (Count 3).
[10] The summary of facts relied upon by Judge Ronayne also recorded how Mr Banaba and his co-defendants were involved in a significant cannabis growing and retail enterprise. The evidence indicated to police that cannabis was being supplied to Mr Banaba on a weekly basis. One of the “tinnie houses” used by Mr Banaba was searched by Police who located 117 cannabis tinnies, each containing between 0.4 and 0.8 g of cannabis. No issue is taken with the aspects of the summary of facts concerning Mr Banaba’s involvement in that offending.

Sentencing decision

[11] In his sentencing notes Judge Ronayne summarised Mr Banaba’s role in the methamphetamine operation in the following way:

[75] Mr Banaba, the perfect description for you is coined by the Crown in submissions where you are described as the man on the ground to assist in the eventual distribution of the imported methamphetamine. Your disclosure to the probation officer is consistent with nothing less. Of course, strictly speaking, none of the methamphetamine to which your convictions relate reached your hands. You were nevertheless a close associate within a criminal syndicate. You were a major wholesale customer of the cannabis growers.

[12] The Judge had earlier explained:

[71] ... [The] aggravating feature really is an amalgam of both premeditation and a very high degree of planning and sophistication in both the methamphetamine and cannabis offending. The criminal syndicate had a person in Canada. ... The attempted importations were managed closely by [Mr Banaba’s co-defendants]. ... Mr Banaba has pleaded guilty to conspiring with these people in respect of these importations. He worked with them in respect of the eventual distribution of drugs.

[13] Judge Ronayne adopted a starting point of 15 years imprisonment for the three conspiracy charges. Judge Ronayne then increased the sentence and made some deductions.
[14] We have found it difficult to fully understand the approach taken by Judge Ronayne after he determined the starting point of 15 years imprisonment. We think he uplifted his provisional sentence of 15 years by three years to reflect the cannabis offending, but then reduced the provisional sentence by three years to reflect the totality of Mr Banaba’s offending.
[15] The Judge then made adjustments to reflect Mr Banaba’s personal circumstances. These adjustments were:

• (a) an 18-month uplift to reflect the fact the offending occurred when Mr Banaba was on parole for a sentence of imprisonment imposed for cannabis offending;
• (b) a discount of 10 per cent to reflect Mr Banaba’s assistance to authorities; and
• (c) a discount of 12 per cent to reflect Mr Banaba’s guilty pleas.

[16] This resulted in the end sentence of 13 years imprisonment. Judge Ronayne imposed an MPI of five years and seven months imprisonment. He also imposed a concurrent sentence of six years imprisonment for the cannabis offending. No explanation was given for the six year concurrent sentence of imprisonment, which is inconsistent with the three year uplift provisionally given by Judge Ronayne to reflect that offending.

Summary of facts

Background to disputed facts

[17] Ms Pecotic’s supplementary submissions focused on the extent of Mr Banaba’s role in the conspiracy and the amount of methamphetamine estimated to be involved in Count 3.
[18] In relation to the quantity of methamphetamine in Count 3, the summary of facts does not refer to any weight. In the District Court, Ms Pecotic submitted there was no way of establishing the exact weight of the package. She said that if there was an issue about this, it ought to be determined in a disputed facts hearing. Mr Tantrum, senior counsel for the Crown, explained in his submissions that the police were able to calculate the likely quantum of methamphetamine involved in Count 3 by deducting from the weights recorded on the consignment documents the true weight of the shock absorbers used to facilitate the importation. This calculation led the police to estimate that Count 3 involved approximately 3.75 kg of methamphetamine.
[19] As to Mr Banaba’s role in the offending, the summary of facts presented to the Court refers to Mr Banaba being kept informed on a regular basis about what was happening with the various proposed shipments of methamphetamine and on one occasion the police observing him meeting with Mr Hoang at a park. Ms Pecotic submitted these statements inaccurately overplayed Mr Banaba’s involvement. She submitted Mr Banaba was only informed that the packages had not arrived and the meetings were for the purposes of cannabis dealings.
[20] Mr Banaba provided an affidavit dated 3 August 2015 at sentencing. He took full responsibility for selling cannabis at a Universal Drive address but minimised his role in relation to the methamphetamine conspiracy charges. He admitted only to providing the Universal Drive address. He maintained the arrangement was for him to make sure the house was empty and clean of cannabis. One of his co-defendants or their associates were to come to the address and wait for the package to arrive. In exchange, he would receive cheaper cannabis. He claimed he was not responsible for any of the documentation to arrange the packages to come into New Zealand. He did not know such large quantities were involved although he “had an idea that the drug was methamphetamine”.
[21] Judge Ronayne had the advantage of hearing evidence at trial of Mr Banaba’s co-defendants, but because Mr Banaba pleaded guilty he was not involved in the trial. The Judge rejected Mr Banaba’s affidavit without hearing him even though he had offered to be cross-examined. The Judge considered the affidavit to be “manipulative of the proper process for sentencing”. He also accepted the Crown submission about the quantity of methamphetamine involved in Count 3 was approximately 3.8 kg. In our view, the Judge was not entitled to do this. Under s 24 of the Sentencing Act 2002, there is a prescribed process for determining facts that are in dispute. If the Crown wished to rely on these matters at sentencing, then a disputed facts hearing was necessary.
[22] Ms Pecotic submitted that the matter should be remitted to the District Court for re-sentencing. However we are entitled to make our own assessment for the purposes of appeal as to whether the resolution of the disputed facts might reasonably have affected the sentences that were imposed. We deal in turn with the amount of methamphetamine involved in Count 3 and Mr Banaba’s role in the offending.

Analysis of disputed facts

Amount of methamphetamine involved in Count 3

[23] Mr Tantrum’s submissions explain the accuracy of the police estimates of the amount of methamphetamine that was likely to have been involved in relation to Count 3. Those calculations involved deducting the actual weight of the shock absorbers from the specified weight of the consignments. This led police to the view that the methamphetamine involved in Count 3 weighed approximately 3.75 kg. This was a logical approach but necessarily involved reliance on inference to some degree. Even accepting a substantial discount of the 3.75 kg figure, it is reasonable to infer that a quantity of methamphetamine of sufficient significance to warrant the risk of detection was intended, in addition to the admitted 6.75 kg in relation to Counts 1 and 2.
[24] Even if the amount involved in Count 3 had been overestimated, Mr Banaba has admitted that the amounts involved in Counts 1 and 2 to which he pleaded guilty were 6.75 kg of methamphetamine. The admitted quantities for Counts 1 and 2 is high enough to justify a starting point within band four of R v Fatu, which we discuss below at [29]-[4].⁴

Mr Banaba’s role in the offending

[25] We have examined the affidavit Mr Banaba submitted to Judge Ronayne and the material which Ms Pecotic has drawn attention to which primarily relates to communications between Mr Banaba and Mr Hoang and Mr Tran.
[26] The Judge was entitled to be sceptical of the credibility of Mr Banaba’s affidavit given his knowledge of the evidence given at trial by the co-defendants as to the extent of their communications with Mr Banaba.
[27] We accept, as did the Judge, that Mr Banaba’s involvement with the conspiracy was not as great as the role played by Mr Hoang and Mr Tran. Mr Banaba nevertheless played an important role in the conspiracy. His communications with Mr Hoang and Mr Tran show that he was involved in the enterprise and his own affidavit confirms that he kept in contact with his codefendants as to the timing of the deliveries. Importantly, he provided an address for the delivery of some of the packages of methamphetamine involved in the conspiracy and it is accepted that he was personally to receive some (albeit a small amount) of the methamphetamine imported.
[28] The Judge accurately described Mr Banaba’s role as “the man on the ground”. These facts remain even if, as Mr Banaba now maintains, some of his conversations with Mr Hoang were about cannabis rather than methamphetamine. We do not consider the number of communications between Mr Banaba and his codefendants as being material factors to his sentencing. On his own admission, Mr Banaba’s role was essential to the success of the conspiracy.

Starting point

[29] Judge Ronayne adopted the 15 year sentence starting point by determining Mr Banaba’s offending was within band four of R v Fatu.^[5]
[30] Where a defendant is convicted of a conspiracy charge an adjustment needs to be made to the Fatu guidelines in order to reflect the lower maximum penalties that can be imposed in conspiracy cases.^[6] It is also “equally logical that, the closer a conspiracy comes to execution, the closer it becomes in seriousness to the actual illegal act being planned”.^[7]
[31] In the present case, the conspiracy was well advanced. The methamphetamine involved in Counts 1 and 2 was intercepted by Canadian authorities at the final stages of being transported to New Zealand. The methamphetamine involved in Count 3 arrived in New Zealand.
[32] In these circumstances, the appropriate approach when sentencing Mr Banaba was to allow a small discount to the sentence that would otherwise be imposed under Fatu to reflect the fact Mr Banaba pleaded guilty to charges involving conspiracies. A discount in the range of five to 10 per cent was appropriate.^[8]
[33] The amount of methamphetamine is a crucial consideration when setting the starting point. The Fatu bands were determined by reference to the quantity of methamphetamine supplied.
[34] There was no dispute Mr Banaba’s offending fell squarely within band four of Fatu. The offending involved the supply of a very large commercial quantity and therefore attracted a starting point of between 10 years and life imprisonment.^[9] As was explained in Fatu, offending within band four will attract longer sentences “where the quantities are appreciably larger [than 500 g], to reflect the fact that dealing in methamphetamine potentially attracts a life sentence”.^[10]
[35] In the present case the quantities involved in relation to the first two conspiracy charges was 6.75 kg of methamphetamine. The amounts involved in the first two counts alone involved a very large commercial quantity of methamphetamine.
[36] Ms Pecotic has argued that Mr Banaba did not play a critical role in the operation and was not part of the management structure relating to importation. She submits that the Judge wrongly elevated his role and therefore the starting point should have been lower.
[37] In Fatu the Court said that the sentencing bands are applicable to all who import methamphetamine, including those whose role are as “mules” or couriers, but observed that the more significant the role of the offender in the importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.^[11]
[38] Mr Tantrum suggested that the Judge should have adopted a 13 year starting point. On reflection, and after considering comparable cases, we agree with the approach suggested by Mr Tantrum.^[12] This conclusion is based on the fact the conspiracies involved very large commercial quantities of methamphetamine, the enterprises were at an advanced stage and Mr Banaba played an important role in the operation.

Adjustments to starting point

[39] In our assessment, Judge Ronayne should then have imposed an uplift of four years imprisonment to reflect the cannabis offending which in itself was significant. An adjustment should then have been made to the provisional sentence of 17 years imprisonment to reflect the totality principle set out in s 85(2) of the Sentencing Act 2002. That adjustment would have produced a further provisional sentence of 15 years imprisonment. Fifteen years was therefore the appropriate provisional sentence reached by Judge Ronayne, albeit in a different manner. We agree with Judge Ronayne’s approach to then increase that provisional sentence to 16 years and six months imprisonment to reflect the fact Mr Banaba’s offending occurred when he was on parole in relation to a sentence imposed for earlier drug offending.

Deductions for personal mitigating factors

[40] Ms Pecotic says Judge Ronayne failed to give Mr Banaba sufficient credit for three personal mitigating factors, namely his cooperation in surrendering a significant quantity of firearms, his remorse and his guilty pleas.
[41] It is well established that personal mitigating factors may be taken into account when sentencing for serious drug-related offending, however, “they generally carry little weight ... given the vital need for denunciation and deterrence”.^[13]
[42] In our assessment, while it was commendable for Mr Banaba to have surrendered firearms which were illegally in his possession, he was not entitled to a significant discount for this action. Offenders who surrender illegal weapons in an attempt to gain credit at sentencing should not expect generous treatment. In surrendering weapons the offender is doing no more than complying with his or her legal obligations. Some recognition may nevertheless be justified for the removal of a potential threat to the safety of the community or as reflecting cooperation with the police. The latter has been accepted as an appropriate mitigating factor in sentencing.^[14]
[43] The discount of 10 per cent granted by Judge Ronayne was reasonable in the circumstances. This was not a case in which the authorities were assisted in any material way. Significant discounts might have been available had Mr Banaba provided meaningful assistance to authorities that led to others being prosecuted. We would therefore allow Mr Banaba a discount of 20 months imprisonment for assisting the authorities.
[44] We are also satisfied the sentencing Judge was correct in not providing any discrete discount for remorse. The pre-sentence report recorded Mr Banaba “did not express remorse” and that he “maintained his offending ‘was the only way to make money’ which he needed to help finance a car wrapping business he was trying to establish”.
[45] Mr Banaba pleaded guilty a week before his trial was scheduled to commence. The 12 per cent discount granted by Judge Ronayne to reflect Mr Banaba’s guilty pleas was reasonable in the circumstances. This equates to a further discount of 22 months imprisonment.
[46] This leads to an end sentence of 13 years imprisonment, which was the sentence imposed by Judge Ronayne.
[47] No serious issue is taken with the MPI imposed by Judge Ronayne. Any MPI which was less than 50 per cent of the end sentence was, in the circumstances of this case, generous.
[48] We are concerned, however, that Judge Ronayne imposed a six year concurrent sentence for the cannabis offending when he had previously provided for an uplift of three years imprisonment to reflect that offending. Ms Pecotic briefly mentioned this aspect of Judge Ronayne’s decision in her submissions stating “the end sentence of six years cannot be justified”.
[49] In our view, the sentence of six years imprisonment for the cannabis offending was manifestly excessive. We have therefore decided to rectify the error in that sentence. It will be quashed and replaced with a sentence which reflects the true culpability of Mr Banaba’s cannabis offending, namely a concurrent sentence of four years imprisonment.^[15]

Conclusion

[50] While we disagree with aspects of the methodology followed by Judge Ronayne, the end sentence of 13 years imprisonment he imposed in relation to the three conspiracy charges was not manifestly excessive.
[51] We also uphold the MPI sentence of five years and seven months imprisonment.
[52] We quash the concurrent sentence of six years imprisonment imposed in relation to Mr Banaba’s cannabis offending. That sentence is replaced with one of four years imprisonment to be served concurrently.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] Count 1 in the indictment concerned 2.861 kg of methamphetamine. Count 2 concerned 3.889 kg of methamphetamine. The methamphetamine involved in Count 3 is the source of some dispute, as we outline below.

^[2] Under s 6(2A)(a) of the Misuse of Drugs Act 1975.

^[3] Under s 6(1)(e).

^[4] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34].

^[5] R v Fatu, above n 4, at [34].

^[6] R v Te Rure [2007] NZCA 305, [2008] 3 NZLR 627 at [25].

^[7] At [25].

^[8] At [28].

^[9] R v Fatu, above n 4, at [34].

^[10] At [33].

^[11] R v Fatu, above n 4, at [36].

^[12] R v Huang HC Auckland CRI-2006-091-8458, 8 May 2009; Nathan v R [2011] NZCA 284; and R v Lau HC Auckland CRI-2005-92-2600, 16 December 2005.

^[13] R v Chen [2009] NZCA 445, [2010] 2 NZLR 158 at [174].

^[14] R v T CA255/01, 30 October 2001 at [14].

^[15] Crimes Act 1961, s 385(3) and R v Hadley [2003] NZCA 6; [2003] 2 NZLR 88 at [5]- [11].