Baird v R
[2012] NZCA 430
•21 September 2012
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA722/2011 [2012] NZCA 430 |
| BETWEEN STEVEN JOHN BAIRD |
| AND THE QUEEN |
| CA855/2011 |
| AND BETWEEN ROBERT JONES |
| AND THE QUEEN |
| CA7/2012 |
| AND BETWEEN JIALIN WU |
| AND THE QUEEN |
| CA279/2012 |
| AND BETWEEN ZHONG JIE TANG |
| AND THE QUEEN |
| Hearing: 23 August 2012 |
| Court: Harrison, Fogarty and Courtney JJ |
| Counsel: A G Speed and S Clark for Appellant Baird S Tait for Appellant Jones D S Niven for Appellant Wu P J Kaye for Appellant Tang B D Tantrum and M R Walker for Respondent |
| Judgment: 21 September 2012 at 10.30 am |
JUDGMENT OF THE COURT
AMr Baird’s appeal against conviction is dismissed.
BMr Tang’s appeal against sentence is allowed. The sentence of 13 years imprisonment is quashed. A sentence of 11 and a half years imprisonment is substituted.
CAll other appeals against sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Courtney J)
Table of contents
| Para No | |
| Introduction | [1] |
| Appeal against conviction by Steven John Baird | [7] |
| Grounds of appeal | [7] |
| Should the Crown have advanced its case against Mr Baird on counts 5 and 7 under both s 66(1) and (2)? | [9] |
| The trial Judge’s summing up | [15] |
| Unreasonableness and the proviso to s 385 | [33] |
| Appeal against sentence by Zhong Jie Tang | [40] |
| The starting point and disparity with Mr Sims | [42] |
| Was the uplift too great? | [57] |
| Result | [60] |
| Appeal against sentence by Steven John Baird | [61] |
| Should the Judge have placed greater weight on Mr Baird’s personal circumstances? | [65] |
| Did the end sentence fairly reflect the totality of the offending? | [74] |
| Minimum period of imprisonment | [77] |
| Appeal against sentence by Jialin Wu | [84] |
| Was the starting point too high? | [85] |
| Was the uplift excessive? | [91] |
| Was the end sentence excessive? | [92] |
| Appeal against sentence by Robert Jones | [95] |
| Was the starting point too high compared to that taken for other offenders? | [97] |
| Weight given to mitigating factors | [100] |
| Result | [103] |
Introduction
The appellants and two others were convicted on charges of manufacturing and supplying methamphetamine and other related offences following a jury trial in the High Court at Auckland before Woodhouse J.[1] One of the appellants, Steven John Baird, appeals his conviction. All, including Mr Baird, appeal their sentences.[2]
[1] The two others convicted have not appealed.
[2] R v Tang HC Auckland CRI-2009-004-13439, 6 October 2011.
The charges followed a police operation that included the surveillance of the Jacaranda Motel in Epsom. The Crown alleged that the accused were party to a common enterprise to manufacture and supply methamphetamine. The roles taken by the various accused were established mainly through intercepted text messages and phone calls. Other evidence was found following searches of the motel and other premises at the termination of the operation.
Zhong Jie Tang, the lessee of the motel, was the organiser of the enterprise. Terence Arthur Sims (not an appellant) was the cook. Steven Baird was primarily involved in the supply of the methamphetamine but also supplied some of the necessary chemicals. Jialin Wu, a cousin of Mr Tang, was mainly involved in the manufacturing of methamphetamine but also provided assistance in sourcing the cutting agent needed for distribution. Robert Jones both supplied ingredients and was involved in the supply of methamphetamine. Wenbin Gu (not an appellant) was an employee of Mr Tang and provided general low-level assistance.
Methamphetamine was manufactured on four occasions. The Crown alleged that on the first three occasions the first phase of the manufacturing process, the extraction of pseudoephedrine from Contac-NT, took place at the Jacaranda Motel and the second phase, production of methamphetamine hydrochloride from the pseudoephedrine, at Mr Sims’ home at Kaukapakapa. On the fourth occasion the whole manufacturing process took place at the motel.
The convictions are conveniently summarised as follows:
(a)Count 1 – Mr Tang and Mr Sims – manufacturing methamphetamine between 6 April and 24 April 2009;
(b)Count 2 – Mr Tang, Mr Sims and Mr Baird – supplying methamphetamine between 25 April and 25 May 2009;
(c)Count 3 – All accused – manufacturing methamphetamine between 26 May and 28 May 2009;
(d)Count 4 – All accused except Mr Gu – supplying methamphetamine between 28 May and 30 May 2009;
(e)Count 5 – All accused – manufacturing methamphetamine between 2 June and 4 June 2009;
(f)Count 6 – All accused except Mr Gu – supplying methamphetamine on 5 June 2009;
(g)Count 7 – All accused – manufacturing methamphetamine between 8 June and 11 June 2009;
(h)Count 8 – Mr Tang, Mr Gu and Mr Wu – possession of methamphetamine for supply on 11 June 2009;
(i)Count 9 – Mr Tang, Mr Gu and Mr Wu – possession of methamphetamine for supply on 11 June 2009;
(j)Count 10 – Mr Tang, Mr Gu and Mr Wu – possession of equipment for manufacture;
(k)Count 11 – Mr Tang, Mr Gu and Mr Wu – possession of precursor substances;
(l)Count 12 – Mr Sims – possession of equipment for manufacture of methamphetamine;
(m)Count 13 – Mr Sims – possession of precursor substances for manufacture of methamphetamine;
(n)Count 14 – Mr Sims – possession of materials for manufacture of methamphetamine;
(o)Count 16 – Mr Jones – possession of materials for manufacture of methamphetamine.
At a disputed facts hearing Woodhouse J found that the total amount manufactured over the four occasions was “materially more than 300 grams”.[3] He put the offending between the middle and top of band 3 in R v Fatu[4] and sentenced on that basis.
Appeal against conviction by Steven John Baird
Grounds of appeal
[3] R v Tang HC Auckland CRI-2009-004-13439, 4 October 2011 at [63].
[4] R v Fatu [2006] 2 NZLR 72 (CA).
Mr Baird appeals his conviction on two of the manufacturing charges, counts 5 and 7. They related to the manufacture of methamphetamine on two occasions in June 2009. The Crown case was that Mr Baird was a secondary party, not the principal offender, and put on the basis of both ss 66(1) and 66(2) though Ms Yelavich, who prosecuted, made it clear that the main thrust of the Crown case was that all of the accused were involved in a joint criminal enterprise which had as its purpose the manufacture and distribution of methamphetamine.
Mr Speed, for Mr Baird, advanced the appeal on three grounds. First, a miscarriage of justice had resulted from the Crown putting its case against Mr Baird on both s 66(1) and (2) which made it difficult for the jury to properly differentiate between various accused. Second, in summing up the Judge exacerbated the confusion caused by the Crown’s approach and failed to direct the jury adequately regarding Mr Baird’s position. Third, the conviction was unreasonable in that the jury could not reasonably have been satisfied to the requisite standard on counts 5 and 7.
Should the Crown have advanced its case against Mr Baird on counts 5 and 7 under both s 66(1) and (2)?
Mr Speed did not argue that the Crown was precluded from putting its case on the basis of s 66(2) and Mr Tantrum pointed out that this Court in R v Chen had confirmed that s 66(2) does not exclude the offence that is the object of the unlawful common purpose.[5] Mr Speed’s argument was that there was no evidence to link Mr Baird to manufacturing during June 2009 (counts 5 and 7) and, therefore, no basis on which to advance the case on these counts alternatively under s 66(1) and (2). There was, however, evidence implicating the other accused as either principals or parties under s 66(1) and the way in which the Crown closed to the jury failed to differentiate between Mr Baird and the other accused.
[5]R v Chen [2009] NZCA 445. This proposition was not considered at any length in R v Chen, nor in R v Currie [1969] NZLR 193 (CA), cited as authority in R v Chen. Further, R v Chen did not refer to R v Curtis [1988] 1 NZLR 734 (CA) (or the decisions cited therein of R v Gush [1980] 2 NZLR 92 (CA) and Chan Wing-Siu v R [1985] AC 168 (PC)) which suggest that s 66(2) does not apply to the offence that is the immediate object of the unlawful common intention. However, because the point was not taken by the appellant we have not considered it further.
The case against the accused other than Mr Baird under s 66(1) was very strong, including the fact that Mr Tang, Mr Wu and Mr Gu were all found at the motel on 11 June 2009 in possession of methamphetamine. However, Mr Tantrum acknowledged that there was no evidential foundation for the charge against Mr Baird under s 66(1). This distinction was not apparent from the Crown closing.
In closing, the prosecutor spent some time discussing the evidence relating to count 5 but made only this brief reference to Mr Baird:
And page 179, that’s a conversation between Mr Baird and Mr Tang. And halfway down that page Mr Tang tells Mr Baird that “Terry’s just pick up what I got,” and then “Yeah, going to” (and then turn over to page 100) “gonna finish that tonight then”. And that of course ties in with the conversation that I’ve already told you about between Mr Sims and Mr Tang. Mr Tang and Mr Baird, that’s at page 180, then plan to meet later that day. As you can see that’s referred to page 180.
Summarising the Crown’s position on count 5 Ms Yelavich said:
Again the Crown says that s 66(2) has application if you find that a common enterprise was in existence and the Crown says that all accused are liable as parties to the offending on that basis. But if you are not satisfied of the existence of that joint enterprise at that time, then it is necessary to consider s 66(1) and at the very least the Crown says that you can be sure that the accused were knowingly aiding in the manufacture of that methamphetamine.
(Emphasis added.)
The prosecutor also spent some time discussing the evidence relating to count 7. However, there was no mention at all of Mr Baird in that part of the address. Ms Yelavich discussed the intercepted calls between Mr Tang and Mr Jones, Mr Wu and Mr Sims. She also referred to the Police surveillance evidence of 10 June 2009 and what the Police found when they apprehended Mr Tang, Mr Wu and Mr Gu at the motel on that night. She concluded by saying:
The Crown also says that all other accused are liable as parties under s 66(2) of the Crimes Act, but if you are not satisfied of the existence of the joint enterprise, then under s 66(1) in terms of assisting in that manufacturing of the methamphetamine by sourcing chemicals.
Although there was admittedly no evidence to support a finding that Mr Baird was a party under s 66(1) we consider that, in failing to deal with the various accused clearly, the Crown risked leading the jury to think that there was some evidential foundation. This effect could have been overcome through comprehensive directions in the summing up. However, as we discuss next, the Judge did not give the kind of specific direction that would have alerted the jury to the difference between Mr Baird and the other accused.
The trial Judge’s summing up
Mr Speed submitted that the Judge’s use of a single issue sheet for each count and his failure to direct the jury regarding the evidence against Mr Baird on which a finding of liability through unlawful common intention might be based caused unfair prejudice to Mr Baird because there was a substantial body of evidence implicating his co-accused and very little implicating him.
Woodhouse J provided the jury with what he described as a guide sheet for each count. Each guide sheet covered the position of all the accused charged in relation to the relevant count. The wording of the guide sheets that related to manufacturing were all very similar so that the guide sheet for count 1 (which did not relate to Mr Baird) was the same as those for counts 5 and 7, save for the names of the accused.
The Judge talked at length about the questions in the guide sheet for count 1, with that explanation effectively serving as the explanation for counts 5 and 7; when the Judge came to deal with counts 5 and 7 he spoke very briefly and referred to the “same format”, presumably referring back to the count 1 guide sheet.
The first three questions in the guide sheet for counts 1, 5 and 7 were directed towards liability as a principal. Question 1 asked whether methamphetamine was manufactured at Mr Sims’ home at Kaukapakapa (counts 1 and 5), or at the Jacaranda Motel (count 7). Question 2 asked whether the accused was directly involved in the manufacturing process. Question 3 asked whether the accused knew and intended that methamphetamine would be manufactured.
The rest of the guide sheet was directed towards liability as a party. For convenience we reproduce the relevant part:
If your answer to question [2], or question [3], or both questions, is “no” for the accused whose case you are considering, AND if you decide that the other accused on this count is not guilty as a principal, your verdict for the accused whose case you are considering must be not guilty.
If your answer to question [2], or question [3], or both questions, is “no” for the accused whose case you are considering AND if you decide that the other accused on this count is guilty as a principal, you will need to consider the following questions to decide whether the accused whose case you are considering is guilty as a party.
[4] Has the Crown proved, beyond reasonable doubt, that:
a)Before the manufacture of methamphetamine alleged in this count commenced [relevant accused] had formed a common intention to manufacture methamphetamine for supply;[6] and
[6]The Crown actually alleged a common intention to manufacture and distribute methamphetamine; the guide sheet is framed so as to convey a more narrow scope, just the manufacture of methamphetamine.
b)They had the intention to assist each other in that objective; and
c)The accused whose case you are considering knew that the manufacture of methamphetamine as alleged in this count 1 was a probable consequence of the common intention to manufacture methamphetamine for supply?
If your answer to question [4] is “yes”, your verdict for the accused whose case you are considering must be guilty.
If your answer is “no”, go to question [5].
[5] Has the Crown proved, beyond reasonable doubt, that the accused whose case you are considering:
a)Had knowledge that the accused you have found guilty as a principal was intending to manufacture methamphetamine; and
b)Intentionally assisted or supported or encouraged the other accused in the manufacture as alleged in count 1?
c)Intended that manufacture occur?
If your answer to question [5] is “yes”, your verdict for the accused whose case you are considering must be guilty.
If your answer to question [5] is “no”, your verdict for the accused whose case you are considering must be not guilty.
In taking the jury through these questions the Judge gave the following directions:
[36] Now there are two possibilities – and I digress for a moment from the words in the guide sheet – the sequence in which Ms Yelavich, for the Crown, put it – there are two possibilities on which the accused might be parties. One could be referred to by – by way of shorthand – as common intention. There is much more involved in it – and it is set out at question [4]. Some counsel referred to s 66(2) of the Crimes Act. And I will repeat this a bit later, but that is the provision in the Crimes Act which deals with being liable as a party because you formed a common intention with others to commit crime – in its simplest form. So question [4] deals with what – by way of shorthand – I call common intention. To find an accused liable as a party under this heading you ask: has the Crown proved beyond reasonable doubt that – and this is question [4] subsection a) – a), b) and c) – there are three critical things. All of them must be established beyond reasonable doubt. Before the manufacture of methamphetamine alleged in this count commenced – before the manufacture commenced – Mr Tang and Mr Sims had formed a common intention to manufacture methamphetamine for supply. Now the common intention alleged by the Crown throughout this case – for all of the counts – is an alleged common intention to manufacture methamphetamine for supply. So that is what you are looking for – evidence of that. Secondly – sub-paragraph b) – they had the intention to assist each other in that objective – in the objective of manufacture methamphetamine for supply. Third – sub-paragraph c) – the accused whose case you are considering knew that the manufacture of methamphetamine as alleged in this count 1 was a probable consequence of the common intention to manufacture methamphetamine for supply.
[37] So you must look for those critical elements and then ask these questions in the next box. If your answer to question [4] is yes your verdict for the accused whose case you are considering must be guilty. If your answer is no then go to question [5]. And I pause there to say with the first question – with the first enquiry – if your answer to question [4] is yes your verdict for the accused whose case you are considering must be guilty. And you will remember that this will be on the basis that you have already decided that another accused is guilty as the principal. And it is much simpler to explain this to an extent on this count because there are only two accused, but the context is exactly the same throughout. At this point you will have found one of the accused guilty as a principal, one of the accused guilty as a party, because the two of them formed this common intention with those elements set out in question [4].
[38] Coming to question [5] and this is the alternative basis upon which the Crown contends the accused are liable as parties if they are not liable as principals. And I just note that this actually is contained in the Crimes Act s 66 subsection (1) – or 66(1). But the Crown dealt with 66(2), common intention first and it is because of that I have dealt with it first. Now, question [5]: has the Crown proved beyond reasonable doubt – has the Crown proved beyond reasonable doubt – that the accused whose case you are considering, a) had knowledge that the accused you have found guilty as a principal was intending to manufacture methamphetamine, and b) intentionally assisted or supported or encouraged the other accused in the manufacture as alleged in count 1, and c) intended that manufacture occur? And then the same format of questions: if the answer to question [5] is yes your verdict for the accused whose case you are considering must be guilty. If your answer to question [5] is no your verdict for the accused whose case you are considering must be not guilty, and that accused will be not guilty as a principal and not guilty as a party.
There was, of course, no reference to Mr Baird in these directions because they were being given in relation to the guide sheet for count 1, which did not involve Mr Baird. Later, in relation to counts 5 and 7, the Judge gave much briefer directions effectively relying on the earlier direction. But Mr Baird was not mentioned:
[48] Count 5 is the next charge of manufacture. And again, simply as recorded at question one, the Crown’s case is that there was manufacture of methamphetamine at Mr Sims’ home at Kaukapakapa. Exactly the same format.
…
[50] Count 7 is the fourth charge of manufacture of methamphetamine. The format is exactly the same as the format that the sequence – the logic – recorded earlier in these guideline notes for the other charges of manufacture. I paused here because – and you will have recognised this from all of the evidence in the case. At this point what the Crown is alleging – and it is recorded – and this is the case the Crown has presented – that methamphetamine was manufactured on this occasion at the Jacaranda Motel. But the question of the nature of manufacture remains exactly the same. The factual context, however, is important. And that gives rise to other matters which counsel have touched on. But the format is the same.
After discussing the guide sheets relating to the remaining counts the Judge invited the jury to put the guide sheets to one side and gave further directions on but no reference to how the jury might identify the evidence relevant to this issue.
The Judge then went on to direct the jury as to finding the existence of a common intention including the following direction regarding the evidence that could be taken into account in considering the existence of a common intention. Although the Judge referred to “the relevant period” it was not clear what that period was, that is, it was not clear that the jury had to be satisfied on each occasion that the party whose position it was considering was (or was still) a party to the alleged common intention. The Judge also directed caution in considering statements or actions of other accused but did not identify the reason that caution was required:
[77] With some exceptions – and I will note them in a moment – you can consider all of the evidence that you have heard in this case in relation to this question. This means that if you are, for example – and they are solely examples – if you are, for example, considering whether Mr Sims or Mr Baird or Mr Jones formed a common intention with Mr Tang, you can consider all the conversations over the relevant period even if Mr Sims or Mr Baird or Mr Jones was not involved in that conversation. You can consider all of the conversations even if the particular person was not involved in the conversation. And you can consider the actions of other people said to be involved in the common intention at the relevant time even though they are not the actions of whichever accused you are considering – Mr Sims or Mr Baird or Mr Jones or whoever it is.
[78] When you are considering the case of one accused, you do need to take care in relying on the statements or actions of other accused if the accused whose case you are considering was not present or involved in the conversation. I can put that a slightly different way. I have said you can have regard, for example, to conversations in which the particular accused was not involved but take care when you are using this in your assessment.
…
[79] Finally members of the jury, on common intention: it is not necessary that all accused alleged by the Crown to be part of a common intention became involved in the common intention at the same time. Nor is it necessary for the Crown to prove that the identity of each person who became involved in the common intention was known to all of the others, provided there is proof that all were involved in the same common intention – common criminal enterprise. In this case, of course, the Crown alleges that Mr Tang was the ringleader and the connections were allegedly made through him to bring all accused together in the alleged common intention to manufacture methamphetamine for supply.
The Judge also gave a specific direction on s 66(1) which we do not need to consider.
Having dealt with the party issue, the Judge then gave standard directions on various evidential issues but apart from directions on a few specific pieces of evidence (that are not relevant for present purposes) the evidential directions were not tailored to the evidence the jury heard. With a few exceptions the only other references to evidence were by way of example.
When the Judge summarised the case for the Crown and defence, he did so with only very limited reference to the evidence as it related to any of the accused. His Honour made it clear that the main thrust of the Crown case was that there was a common criminal enterprise to manufacture methamphetamine for supply with Mr Tang as the leader, identifying the Crown’s allegation that Mr Tang and Mr Sims were working together by 6 April 2009 and that “the others became involved following this and were all involved by at least around about 21 May 2009”. There was, however, no specific reference to the evidence that the Crown was relying on.
In summarising the defence submissions the Judge identified the broad approach taken by all defence counsel that the evidence did not establish a joint criminal enterprise and that if there were no joint criminal enterprise the evidence fell well short of establishing liability on each charge in relation to each of the accused. But there was no reference to the defence position on the various counts. The Judge summarised Mr Speed’s submissions in the following way:
[143] Submissions made by Mr Speed, on behalf of Mr Baird, and again, of course, in addition to the matters I summarised for all counsel, included the following. He submitted to you that the complexity of the way in which the Crown put its case, alleging that the accused were liable either as principals or parties, and with alternative ways in which they might be liable as parties, exposed the weakness of the Crown case. Mr Speed suggested that the Crown case against Mr Baird was very much dependent on the cash found at Mr Baird’s home. I have already touched on the submissions made by Mr Speed in this regard in relation to the body of evidence indicating that this money came from Mr Baird’s entertainment business. Mr Speed submitted that the evidence of Mr Baird’s association with others in the alleged criminal enterprise was very limited. Mr Speed submitted that the evidence of contact between Mr Tang and Mr Baird was readily explained as innocent contact. He also referred to the implausibility, as he put it, of the Crown’s proposition that some conversations allegedly relating to or referring to Mr Baird had anything to do with Mr Baird. One example only was a conversation referring to “boy” which, as Mr Speed suggested to you, could hardly relate to Mr Baird. And this was an example only. Mr Speed also undertook a full survey of the evidence relating to the individual counts faced by his client and explained why in his submission the charges had not been established.
Because there was no evidence to tie Mr Baird directly to the manufacturing processes which occurred on counts 5 and 7 it was essential that the jury be given a clear direction that would enable it to differentiate between Mr Baird’s position and that of the other accused. Since the jury had not received sufficient from the Crown closing to assist in this regard it fell to the Judge to identify the evidence against Mr Baird relevant to those counts.
In general, it is desirable to provide a separate question trail for each accused on each count to ensure that the position of a particular accused is considered separately from that of his co-accused. In this case the guide sheets did contain reminders to the jury that the case against each accused was to be considered separately. Questions 2 and 3 were prefaced with the words “assessing the evidence separately for each accused”. Although those words were not repeated in relation to questions 4 and 5, the directions in the boxes that preceded questions 4 and 5 did refer to “the accused whose case you are considering”. Nevertheless, the global nature of the guide sheet carried a risk that the jury would not scrupulously consider each of the accused separately, nor have in mind the specific evidence relevant to that accused.
We do not accept Mr Tantrum’s submission that to provide a separate question trail for each accused in this case would have been undesirable because it would produce an excessive amount of paper. A separate issues sheet for each accused would have been more likely to focus the jury’s attention on the case against the particular accused. Conversely, providing a single issues sheet for several accused on one count runs the risk of the jury using the evidence relating to one accused in determining the charge against another.
Perhaps of greater concern, there was no mention at all of the evidence against Mr Baird in the Judge’s oral directions in relation to counts 5 and 7. The Judge’s brief discussion on count 5 referred only to manufacturing at Mr Sims’ house with no reference to Mr Baird. Since the Crown did not allege that Mr Baird had been directly involved in manufacturing at Mr Sims’ house in June 2009 the jury would have received no assistance in identifying the evidence that could be taken into account in determining Mr Baird’s liability for count 5. Nor did the Judge refer to Mr Baird (or any of the accused specifically) in relation to count 7, but only to the fact that this count related to the alleged manufacturing at the Jacaranda Motel. Again there was no allegation that Mr Baird was directly involved at the Jacaranda Motel.
We consider that the failure to distinguish Mr Baird from the other accused in either the guide sheets or the oral directions created a real risk that the jury would confuse Mr Baird’s position with that of the others, against whom there was strong evidence of direct participation, and treat the evidence relating to actual manufacture as relevant to Mr Baird. There was a risk, too, that the jury would fail to consider whether, in June 2009, Mr Baird was still party to the common intention, regardless of the conclusion reached in relation to earlier periods.
Unreasonableness and the proviso to s 385
Mr Tantrum submitted that, notwithstanding any deficiencies in the summing up, there was an adequate evidential foundation for finding that Mr Baird was a party to the alleged common intention to manufacture in June 2009 and, therefore, no miscarriage of justice resulted from the convictions.
We have already referred to Mr Tantrum’s acknowledgement that the available evidence could not have supported a finding that Mr Baird was liable as a party under s 66(1) on counts 5 and 7. If the Crown case were to succeed, it had to succeed on s 66(2). The primary evidence against Mr Baird in relation to the June 2009 manufacturing were various conversations captured on intercepted calls between Mr Baird and Mr Tang, the presence of acetone tins in his lock-up garage (one tin bearing Mr Gu’s fingerprint), surveillance photographs showing Mr Baird at the Jacaranda Motel and the presence of $310,000 cash hidden in a shed at his home.
There had been telephone calls between Mr Tang and Mr Baird regularly in May 2009. In June there were calls between Mr Tang and Mr Baird on the 1st, 3rd (two calls), 4th (six calls), 5th, 7th (three calls) and 9th (two calls). The calls were inherently unlikely to be connected with any legitimate business Mr Baird might have had with Mr Tang because they occurred well outside business hours, including two calls on 4 June 2009 at 12.40 am and 1.00 am.
The subject matter of the calls was consistent with the alleged joint criminal enterprise to manufacture and supply methamphetamine and inconsistent with any legitimate business. In particular, in one of the 4 June 2009 calls Mr Tang asks Mr Baird for “acetoney” and Mr Baird replies that he has none left because it was all used that day. Whilst this statement obviously falls short of showing that Mr Baird was involved in the actual manufacture, it does tend to show that he was still party to the overall plan to manufacture and distribute methamphetamine. He agreed to play the role of providing a critical component in the manufacturing process. There were also discussions, clearly coded, regarding manufacturing apparently underway and arrangements made for Mr Baird to go to the Jacaranda Motel during the period in June to which the charges related.
Surveillance evidence put Mr Baird at the Jacaranda Motel late in the evening of 7 and 9 June 2009, this being at a time when the Crown says there was no methamphetamine available but that it was expected to be available shortly.
The content and timing of the intercepted calls and Mr Baird’s presence at the motel on 7 and 9 June 2009 were unequivocal pieces of evidence that placed him squarely in the midst of the joint enterprise that existed at the time. Given the evidence of Mr Baird’s involvement as both a party by aiding through the provision of chemicals to use in the previous manufacturing processes on 26 May (count 3) and as a party to the supplying of methamphetamine on 5 June (count 6) which occurred immediately after the manufacturing process that day we are satisfied that, not only could the jury reasonably have been satisfied of Mr Baird’s guilt to the requisite standard, it is inevitable that it would have returned guilty verdicts on counts 5 and 7. For that reason, notwithstanding the unsatisfactory aspects of the Crown closing and the summing up on counts 5 and 7 we are satisfied that no substantial miscarriage of justice has actually occurred.
Mr Baird’s appeal against conviction is dismissed. We should add two comments. First, apart from the errors identified in the directions on counts 5 and 7, Woodhouse J’s summing up was exemplary. His directions in all other respects were clear and comprehensive in a trial where the number of accused and multiplicity of charges presented significant challenges to the trial Judge. Second, while we acknowledge that the Crown is entitled to put its case against an accused person in the alternative under s 66(1) and 66(2), the trial Judge and jury would be considerably assisted by the prosecutor’s concise identification in opening and closing of the facts relied on to support each alternative.
Appeal against sentence by Zhong Jie Tang
Mr Tang was convicted on 11 counts including four of manufacturing and three of supply. The Judge viewed him as occupying the central role in both the manufacture and supply of the methamphetamine and his offending attracted the highest starting point of all the offenders. We therefore consider Mr Tang’s sentence appeal first.
Mr Tang was sentenced to 13 years imprisonment and appeals that sentence on the basis that it is manifestly excessive as a result of:
(a)Woodhouse J taking too high a starting point in light of the quantity of methamphetamine found to have been manufactured;
(b)disparity between the starting point taken for Mr Tang and that taken for Mr Sims; and
(c)an excessive uplift for the totality of the offending.
The starting point and disparity with Mr Sims
We deal with the first two grounds together because, in this case, the issue of the starting point is inextricably linked with the question of disparity.
In finding the starting point Woodhouse J treated the manufacturing charges as the lead offences for all offenders except Mr Baird. He arrived at a starting point of 13 years for Mr Tang. Mr Kaye, for Mr Tang, submitted that, although a starting point of 13 years could be appropriate viewed in isolation, it was inconsistent with the Judge’s finding as to the amount of methamphetamine manufactured and too high in comparison with the starting point of 10 and a half years taken for Mr Sims.
Mr Kaye submitted that the only relevant figure was 300 grams, that figure being the only one to which the requisite standard under s 24(2)(c) of the Sentencing Act 2002 applied. Any more than that, Mr Kaye submitted, was an artificial starting point. In taking his starting point on the manufacturing charges the Judge said:
[5] … There were four convictions for manufacture in total but I will assess this in relation to the total quantity of methamphetamine that I have found was manufactured on four occasions – that is, between 375 and 500 grams of methamphetamine. This brings this offending within the upper half of band 3 of the Court of Appeal decision in Fatu with a range of 12½ and 15 years imprisonment. The starting point, taking a precise midpoint, would be 13 years 9 months. I fix it at 13 years. Taking a starting point in the upper half of band 3, and then adjusting it down in the way I have just done, provides all of you with a substantial benefit of the doubt as to the total quantity manufactured, for reasons recorded in my disputed facts judgment. And the law is, of course, that you are entitled to the benefit of the doubt.
That assessment of the total quantity as between 375 and 500 grams was made a few days before sentencing in the context of a disputed facts hearing.[7] Based on evidence about money accounted for by Mr Baird to Mr Tang (but leaving aside the $310,000 found at Mr Baird’s house), together with the very substantial amounts of precursor substances, equipment and material found at Mr Sims’ house, the Judge came to the conclusion that there had been manufacture and supply of methamphetamine in “large commercial quantities”.
[7] R v Tang HC Auckland CRI-2009-004-13439, 4 October 2011.
As to precisely how much methamphetamine had been manufactured and supplied, the Judge based his assessment partly on the methamphetamine found at the motel on 11 June 2009 which totalled 75.4 grams. In addition, he had recourse to the evidence as to the amount of toluene used over the relevant period and evidence from an ESR forensic scientist, Dr Ann Coxon, as to the probable conversion rate of toluene to methamphetamine (and allowing for the inevitable variation in the manufacturing process). The Judge concluded that quantities similar to the quantity found at the motel on 11 June 2009 had been manufactured on the three previous occasions. He was satisfied to the requisite standard that the total amount manufactured over the four occasions that were the subject of the charges was “materially more than 300 grams”. He concluded that the offending in respect of the four occasions of manufacture was in the upper half of band 3 of Fatu, that is, 375 grams or more in total.
Whilst identifying an offender’s position within one of the bands in Fatu does require an assessment as to the amount manufactured, that is not the only relevant factor. In Fatu the Court made the general observation that:
[31] Our sentencing ranges overlap between categories. Where an offender fits within any particular band will depend not just on the quantity and purity of the drug involved but also the role played by the offender. Those who are primary offenders can expect starting points towards the higher end of the relevant band, with the converse applying to those whose role is less significant.
The Court also recognised the difficulties in sentencing where the exact amount of methamphetamine manufactured cannot be assessed accurately:
[37] Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of the offending can be assessed depends very much on chance, the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence (for example, in the form of electronic intercepts).
…
[38] Obviously it is open to a sentencing Judge to make findings of fact as to the extent of past offending based on evidence, perhaps in the form of admissions, intercepted communications, cash movements, tick lists and chemical purchases. If there is no agreed summary of facts, such findings must be made in accordance with s 24(2)(c) of the Sentencing Act (that is, on the basis of the criminal standard of proof).
The statement in Fatu often relied on by counsel, including Mr Kaye in this case, that “an offender should only be sentenced in relation to offending which he or she admits or which the Crown can prove”[8] was made in the context of sentencing on the basis of potential yield as discussed in R v Terewi,[9] rather than an assessment of amounts previously manufactured. It would be rare for the Crown to be able to prove beyond reasonable doubt the exact amount that had been manufactured on a previous occasion. A great number of convictions for manufacturing methamphetamine are secured on the basis of circumstantial evidence where the amount previously manufactured is assessed by reference to the quantity of precursor substances known to have been acquired, the amount of cash known to have been received and discussions between accused as to probable amounts supplied. Generally, it will be impossible to be sure of an exact figure.
[8] At [40].
[9] R v Terewi [1999] 3 NZLR 62 (CA) at [5]–[8].
Nor does Fatu constrain sentencing on manufacturing charges to the actual amount that can be proven beyond reasonable doubt to have been manufactured:
[42] Where the Crown can establish that large quantities of methamphetamine have been manufactured, the Court may regard the criminality in gearing up to manufacture as being absorbed by the culpability of the primary offending. In other cases, where the evidence as to how much was manufactured is uncertain, the position is different. Nonetheless it is right to recognise that methamphetamine manufacture is always (or almost always) going to involve significant commerciality. We say this because the difficulties, expense and risks involved in manufacturing methamphetamine make it inherently unlikely that such an operation would be set up to produce drugs for purely personal consumption.
[43] … The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question. Findings of fact in this area must, of course, be made in accordance with s 24(2)(c) of the Sentencing Act.
…
[45] The principal impact of these guidelines will be where there is uncertainty as to the amount of the drug that has been manufactured or where the quantities actually manufactured are low. In relation to such offending, the new guidelines will tend to lift sentencing levels, as they reflect the criminality inherent in gearing up to manufacture methamphetamine.
It is clear from Fatu that the starting point reflects more than a straight arithmetical assessment. It follows that, whilst the Judge’s assessment of the amount that had been manufactured was very significant, it was not the only factor reflected in the starting point. Our first observation in considering this aspect is that the Judge’s finding was not “300 grams”. It was that the total quantity manufactured was “materially more than 300 grams”. How much more he was unable to say. But it would be artificial to limit the finding to 300 grams when the Judge specifically found that it was “materially more” than that. We do not see any error in the Judge treating the amount manufactured as being within the range of 375 to 500 grams of methamphetamine, that range being, in our view, a very fair reflection of the finding of “materially more” than 300 grams. On that basis, taking a starting point slightly below the middle of that range was certainly open to him.
However, we accept Mr Kaye’s submission that the starting point of 13 years was too high when considered alongside the starting point taken for Mr Sims (10 and a half years), Mr Baird (10 years) and Mr Wu (seven and a half years). In particular, Mr Kaye argued that either the roles occupied by Mr Sims and Mr Tang were equivalent or, if they were not, the disparity of two and a half years between the starting points was too great.
The test for whether disparity between co-offenders is unjustifiable is that described by this Court in R v Lawson:[10]
… whether a reasonably minded independent observer aware of all of the circumstances of the offence and of the offenders would think that something had gone wrong with the administration of justice.
[10] R v Lawson [1982] 2 NZLR 219 (CA) at 223.
In sentencing Mr Sims the Judge observed that the starting point for his convictions on the four manufacturing counts could be close to, if not the same as, the starting point for Mr Tang, given his “very active involvement” in the manufacturing. However, the Judge took the lower starting point of 10 and a half years in recognition of Mr Sims’ “lesser role”. We agree with Mr Kaye that, insofar as the manufacturing charges alone were concerned, it could not be said that Mr Tang’s culpability was markedly greater than that of Mr Sims.
Mr Tang and Mr Sims were the only two convicted on all four of the manufacturing charges. Both had allowed their premises to be used for manufacturing. Both were directly involved in the process. Both sourced the chemicals required. If anything, Mr Sims, whose expertise was in the cooking process, was probably more vital to this aspect of the operation. The real difference between Mr Sims and Mr Tang was Mr Tang’s wider role as organiser and co-ordinator of the manufacturing and supply chain. Mr Tang was the organiser of the operation and instigated the manufacturing process. The Judge was right to recognise some difference between them. But on the manufacturing charges alone without recognising their roles in the overall offending (which would properly be reflected by uplifting for totality) we think the disparity was too great.
As a result, while in isolation 13 years as a starting point for Mr Tang’s involvement on the manufacturing charges was within the range available to the Judge, we agree that there is an unjustifiable disparity between that figure and the starting point of 10 and a half years adopted for Mr Sims on the same charges. Mr Sims was if anything treated generously but it is unfair that Mr Tang should be subject to a starting point which does not properly reflect the parity in offending. A difference of one year between Mr Sims and Mr Tang would have adequately reflected their respective culpability on the manufacturing charges. To achieve parity now (given that there is no Crown appeal against Mr Sims’ sentence) requires adjustment to Mr Tang’s sentence. We consider that the appropriate starting point is 11 and a half years.
Was the uplift too great?
The third ground of appeal was that the uplift of two years to reflect the totality of Mr Tang’s offending was too great. The Judge said:
[8] Mr Tang, the starting point of 13 years needs to be increased to take account of the other offences for which you have been found guilty. There are five convictions for supply or possession for supply of methamphetamine. The two offences of possession for supply relate to the total of 75.4 grams of methamphetamine found on 11 June 2009. These should be treated as one offence. There are two further convictions for possession of the equipment and the precursor substance found at the motel. These offences, for which Mr Wu and Mr Gu were also found guilty, are in large measure contained in the manufacturing offences.
[9] Your central role in the supply of methamphetamine as well as manufacture could justify an increase to the starting point of three years or more. However, I take account in particular of one or two intercepted conversations indicating reasonably clearly that you had to account to another person for money – and this is another person who, it seems, has not been identified. I consider that the starting point should be increased by two years – to a total of 15 years imprisonment – to take account of the further offending.
Mr Tang was what Woodhouse J termed the organiser of the criminal group. He was the liaison between the various arms of the operation, directing Mr Sims and Mr Jones to acquire the materials needed for manufacturing, arranging for Mr Gu and Mr Wu to assist in the manufacturing process and liaising with Mr Baird over the supply. A good indicator of Mr Tang’s involvement is the fact, referred to in Woodhouse J’s judgment on the disputed facts, that Mr Tang was party to all but three of the 160 intercepted telephone conversations. Mr Tang also appears to have supplied most of the toluene. He received the proceeds of sale from Mr Baird and accounted for that money to the “boss”. In these circumstances, we do not see any error in the Judge’s uplift of two years.
Mr Kaye’s point on this ground was that Mr Tang’s central role in the supply and manufacture of the methamphetamine was inherent in the lead offending, that is, the purpose in manufacturing at a commercial level is necessarily supply and the end result of supply is therefore taken into account by the sentencing band in Fatu and by the Judge’s placement of Mr Tang within that band. On this issue, however, we agree with Mr Tantrum that manufacturing and supply, even for commercial purposes, are treated separately under Fatu with different approaches taken to the culpability of manufacturers and suppliers. A manufacturer who is not involved in supplying the methamphetamine produced would not be subject to the uplift for the activities of those distributing it. We accept that the Judge was entitled to uplift the starting point to reflect the supply charges.
Result
A change to the starting point means that the end sentence was manifestly excessive. Mr Tang’s appeal against sentence is allowed. The sentence of 13 years imprisonment is quashed and substituted with a sentence of 11 and a half years imprisonment.
Appeal against sentence by Steven John Baird
The Judge treated the supply of methamphetamine as the lead offence in sentencing Mr Baird, compared with the other offenders in respect of whom he took the manufacturing charges as the lead offence. There was no criticism of this approach. The grounds for Mr Baird’s appeal against sentence are, first, that the starting point the Judge took was too high because there was not and could not, on the evidence, have been a specific finding as to how much methamphetamine Mr Baird supplied. Second, Mr Speed argued that the Judge had erred in treating the offending as being on a par with that of Mr Tang and within band 3 of Fatu.
The Judge did attempt to identify the amount of methamphetamine that Mr Baird had supplied and treated Mr Baird’s culpability as on a par with that of Mr Tang:[11]
You were not directly involved in manufacturing methamphetamine, but I am satisfied you actively assisted as a party. You were directly involved, as a principal, in supplying methamphetamine. I do not consider there is any basis for drawing any significant distinction between your role and that of Mr Tang in the supply of methamphetamine.
[11] At [31].
In fixing the starting point the Judge said:[12]
It is not possible to determine how much you directly supplied, compared with supplies by others where you were guilty as a party. The offending certainly comes within band 3 of Fatu, dealing with supply – I emphasise supply – dealing with supply of large commercial quantities between 250 and 500 grams. The starting point for principal offender is between eight to 11 years. I fix the starting point at eight years – which is at the bottom – for the three offences of supplying methamphetamine. This gives you the benefit of the doubt substantially as to quantity. …
[12] At [32].
Mr Baird, Mr Tang and Mr Sims were the only accused convicted on all three counts of supplying (counts 2, 4 and 6). However, it was never suggested that Mr Tang or Mr Sims had any direct involvement in supply; their culpability in that regard would have been as parties. The nature and extent of Mr Baird’s offending both in itself and in the context of the offending of the other accused was a matter that the Judge was best placed to assess. We see no apparent error in his attributing to Mr Baird the corresponding role in relation to supply as Mr Tang occupied in relation to manufacturing.
Should the Judge have placed greater weight on Mr Baird’s personal circumstances?
Mr Speed submitted that the Judge made a further error in failing to adequately take account of Mr Baird’s personal circumstances for the purposes of assisting his rehabilitation and reintegration.[13] The Judge did canvass Mr Baird’s personal circumstances but concluded that there were no factors that required a reduction in circumstances for that aspect. Mr Speed, however, argued that this assessment gave no weight to the pre-sentence report. In particular, although Mr Baird was assessed as being at high risk of re-offending, the report also recorded that:
His motivation not to reoffend is very high, based on his own and his wife’s statements about his commitment to his family. On the other hand, they are both aware that the further prison term is likely to be lengthy, and such an enforced separation may have an adverse effect on that motivation. Further, he acknowledged that that motivation had clearly dropped when he relapsed into using drugs, particularly when he was on bail.
[13] Sentencing Act 2002, s 7(1)(h).
The report also commented positively on Mr Baird’s completion of various self-improvement programmes and the fact that he is unable to participate in other programmes which may need to be deferred until he is closer to release. Mr Speed submitted that the cumulative nature of the sentence would have a crushing effect on Mr Baird’s motivation and rehabilitation, exacerbated by the inability of the prison system to offer an appropriate rehabilitation programme until just prior to release.
Whilst an offender’s personal circumstances can be relevant, the Supreme Court made it clear in R v Jarden that this factor is to be subordinated to the importance of deterrence and any reduction for personal circumstances will be modest:[14]
[12] … As the courts have repeatedly said, and as we emphasise again, in sentencing those convicted of dealing commercially in controlled drugs the personal circumstances of the offender must be subordinated to the importance of deterrence. But this does not mean that personal circumstances can never be relevant.
…
[14] The personal circumstances of an offender may be relevant either because they contributed in some way to the offending, or on purely compassionate grounds. … The crucial importance of deterrence requires, however, that the reduction in sentence be a modest one.
[14] R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.
Mr Speed also relied on the Supreme Court’s statement in Hessell v R.[15] That decision does not, however, alter the effect of Jarden in this case.
[15] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
Mr Speed submitted that the Judge should have had greater regard to the parole services assessment of Mr Baird’s motivation and participation in prison programmes to date. Had greater account been taken of this the Judge would have addressed Mr Baird’s drug dependency through a sentence that had rehabilitation and reintegration as a primary consideration.
Mr Baird has, to his credit, undertaken various self-improvement programmes while in prison. However, it would appear from the pre-sentence report that these were not directly related to drug dependency. Further, comments attributed to him in the pre-sentence report strongly suggest that commercial gain was as much a motivating force in his offending as his desire to be able to afford methamphetamine for personal use.
In any event, Mr Baird’s commitment to rehabilitation must be in some doubt as a result of his offending while on previous drug-related charges. Mr Baird himself acknowledged that his motivation to change had dropped when he was on bail and he relapsed into using drugs. Mr Speed placed this admission in the best light possible, submitting that Mr Baird’s acknowledgement was the first step towards successful rehabilitation. However, taken overall we cannot see that Mr Baird has demonstrated such significant efforts at rehabilitation that would have justified the Judge placing weight on them over deterrence. Whilst Mr Baird’s personal circumstances may attract some weight, the weight to be put on them in the context of these commercial drug-dealing offences was rightly regarded by the sentencing Judge as warranting less weight than deterrence.
Nor do we consider that the Judge erred in not placing weight on the fact that the rehabilitation programmes would not be available until just prior to release. Mr Speed submitted that under the current Department of Corrections policy Mr Baird would not be eligible for release and therefore rehabilitation programmes until 2017. He drew our attention to the recent decision in this Court in Fleming v R, in which, without making any specific finding, this Court indicated that Department of Corrections policies may be taken into account as appropriate in sentencing.[16]
[16] Fleming v R [2011] NZCA 646 at [24].
Whilst the availability of rehabilitation programmes is important and is, in appropriate cases, given weight by sentencing judges, this is not a case which would justify altering the sentence imposed to enable Mr Baird to access rehabilitation programmes earlier. For the reasons we have already discussed, Mr Baird’s motivation was not limited to drug dependency issues and he is an offender who, when he had the opportunity, chose to continue offending rather than to seek assistance with rehabilitation.
Did the end sentence fairly reflect the totality of the offending?
The Judge increased the starting point of eight years by two years to reflect the other offending and then by another two years to reflect the fact that the offending occurred while Mr Baird was on bail on three other drug-related charges (possession of methamphetamine, LSD and heroin for supply). These offences had been committed in 2005 but he was not sentenced on them until 2009 (a term of six years and eight months imprisonment was imposed). The sentence imposed by Woodhouse J was imposed cumulatively on that sentence but the Judge reduced the final sentence to a total of 10 years to reflect the overall length of the cumulative sentences.
Mr Speed submitted that the end result, 16 years eight months imprisonment, was wholly out of proportion to the gravity of the overall offending. The reasons he advanced for this submission effectively repeated matters already raised (and rejected) in relation to other aspects of the appeal, namely the fact that there was no direct evidence as to the amount of methamphetamine Mr Baird had supplied and Mr Speed’s assertion that Mr Baird’s culpability should be regarded as significantly less than that of Mr Tang or Mr Sims.
The gravity of Mr Baird’s offending can hardly be overstated. Not only had he committed serious drug-related offences in 2005, but he went on to become involved in manufacturing and supply of methamphetamine on a commercial basis while on bail for that earlier offending. Another judge may have reduced the overall sentence by a greater amount but we cannot say that the Judge erred in this case in taking a reduction of two years.
Minimum period of imprisonment
Finally, Mr Speed submitted that the Judge had erred in imposing a minimum period of imprisonment of six years. He submitted that the imposition of a minimum period of imprisonment was unnecessary, contrary to established law and that the Judge had erred in not articulating his reasons for imposing the minimum period of imprisonment.
The Judge said:
[41] There was also the question of a minimum period of imprisonment. In all the circumstances of your case, Mr Baird, I am in no doubt that there should be a minimum period of imprisonment. Your circumstances are markedly different from those of Mr Tang and Mr Sims. The minimum period of imprisonment is six years.
We note the earlier statement of this Court in R v Blackmore that a trial judge must carefully identify why a minimum period of imprisonment is appropriate and how that term is reached.[17] Mr Tantrum acknowledged that the Judge did not identify the specific reasons for imposing the minimum period of imprisonment. For that reason, we heard argument on this issue on a de novo basis.
[17] R v Blackmore CA29/05, 18 May 2005 at [45].
Under s 86(2) of the Sentencing Act the Court may impose a minimum period of imprisonment if it is satisfied that the minimum period of one-third otherwise applicable under the Parole Act 2002 will be insufficient for any or all of the stated purposes. These purposes include denouncing the conduct and deterring the offender from committing the same or similar offences.
Mr Speed submitted that, in the circumstances of this case, the objectives of s 86(2) would be sufficiently met by the imposition of the term of imprisonment. In particular, the effect of deterrence and denunciation achieved by a minimum period of imprisonment would, in this case, be outweighed by the detrimental impact on Mr Baird’s rehabilitation and reintegration into the community. In this regard Mr Speed emphasised that Mr Baird’s motivation to not re-offend has been assessed as very high, he has accepted responsibility for his offending and shown remorse and is willing and wanting to engage in rehabilitative treatment.
Mr Speed relied for support on a number of cases in the High Court in which no minimum period of imprisonment was imposed on drug-related charges.[18] However, none of those cases closely resemble the present case. In particular, the offenders had either no or only a limited history of drug-related offending. The striking feature in the present case is Mr Baird’s very serious offending while already on bail for other very serious offending. This is a case in which the Judge would have rightly been concerned that the usual minimum period of imprisonment of one-third would be insufficient to denounce and deter. Although the Judge may not have adequately expressed the reasons for his decision we consider that the decision itself was certainly justified.
[18] R v Vitali HC Auckland CRI-2005-004-20376, 29 August 2006; R v Stock HC Auckland CRI-2010-004-17262, 11 February 2011; R v McQuade HC Auckland CRI-2006-019-8458, 10 September 2008; R v Burdett HC Auckland CRI-2007-092-5673, 20 November 2007; and R v Webb HC Auckland CRI-2006-044-1401, 17 June 2008.
Mr Baird’s appeal against sentence is dismissed.
Appeal against sentence by Jialin Wu
Mr Wu was convicted on three counts of manufacturing (counts 3, 5 and 7), two of supply (counts 4 and 6), two of possessing methamphetamine for supply (counts 8 and 9) and two of possessing equipment or precursors (counts 10 and 11). He was sentenced to six years imprisonment and appeals that sentence on the ground that it is manifestly excessive as a result of the Judge taking too high a starting point and there being too great a disparity between the sentences imposed on Robert Jones and Wenbin Gu.
Was the starting point too high?
In sentencing Mr Wu, the Judge took a starting point of six years and six months. Mr Niven submitted that there was no justification for this starting point, which was higher than those taken for both Mr Jones (five years) and Mr Gu (four and a half years).
The primary factor the Judge took into account in reaching his starting point was that Mr Wu was present during the extraction phase of the manufacturing in May 2009 (count 3) and again when manufacturing occurred on 11 June 2009 (count 7). The Judge accepted that he was not at the motel on the second occasion of manufacture on 2 June 2009 (count 5), though Mr Tantrum pointed to evidence of intercepted calls on 4 June 2009 that did implicate Mr Wu in that manufacturing process. In addition, Mr Wu had made attempts to obtain a cutting agent for use in preparing the drug for distribution (which were apparently successful judging from the presence of the cutting agent at the motel on 11 June 2009).
It was Mr Wu’s sourcing of the cutting agent that was the main difference from the acts done by Mr Wu and Mr Gu in relation of manufacturing. However, it is also evident that the Judge took a lower starting point for Mr Gu partly because of his perception that Mr Gu, a longstanding employee of Mr Tang, felt under some pressure to comply with Mr Tang’s directions. Mr Wu, as Mr Tang’s cousin, was in a stronger position to decide whether he participated in Mr Tang’s plans.
Woodhouse J’s reference in an earlier application for discharge under s 347 of the Crimes Act 1961 to both Mr Wu and Gu being “effectively employees, acting as assistants at Mr Tang’s direction” is not inconsistent with the later assessment as to their respective culpability.[19] The Judge’s view of their respective roles for the purposes of the s 347 application was plainly directed towards the evidence available for the purposes of the jury’s assessment of liability. On sentencing the Judge was considering the wider issue of culpability which was informed, not only by the overt roles they played, but also by the nature of their relationship with Mr Tang and the extent to which their involvement was truly voluntary.
[19] R v Tang HC Auckland CRI-2009-004-13439, 27 June 2011 at [41].
Although Mr Jones supplied many of the chemicals needed for manufacturing he was not directly involved in the process and the lower starting point taken for him was justified on this ground.
The assessment of relative culpability was one that the Judge was best placed to make and there is no apparent reason for us to interfere in that assessment.
Was the uplift excessive?
Mr Niven’s second point was that there was no proper basis for the difference in uplift between Mr Wu (one year) and Mr Gu (six months). There is no merit in this submission. Mr Wu had been convicted on two counts of supplying methamphetamine as well as possession for supply of both methamphetamine and materials or precursors. Mr Gu was not convicted on any count of supplying methamphetamine. This distinction adequately explains the difference in the uplift.
Was the end sentence excessive?
Finally, Mr Niven submitted that there was no proper basis for the difference in the end sentences between Mr Wu and Mr Gu. However, the end sentences were simply a reflection of the respective starting points and uplift for totality. The same discount was given for the mitigating features in each case.
Nor do we consider there to be any basis for concern at the disparity between the end sentence imposed on Mr Wu compared to Mr Jones. The end sentences reflected the very different personal positions they occupied. Whilst Mr Wu’s offending attracted a higher starting point he also received a higher discount for mitigating features. These reasons do not justify adjusting the end sentence so as to reflect the differing nature of their culpability.
Mr Wu’s appeal against sentence is dismissed.
Appeal against sentence by Robert Jones
Mr Jones was convicted of manufacturing methamphetamine (counts 3, 5 and 7), two of supplying (counts 4 and 6) and one of possession of material for manufacturing (count 16). Woodhouse J found that, although not actively involved in the manufacturing process, Mr Jones actively and regularly engaged in supplying material for the purposes of manufacture and in particular a large quantity of toluene. However, the Judge assessed his level of involvement as being “a great deal less than that of Mr Tang and Mr Sims”.[20] The Judge took a starting point of five years imprisonment and increased that by 18 months to reflect the overall offending, resulting in a final sentence of six and a half years.
[20] At [42].
Mr Jones appeals that sentence on the ground that it was manifestly excessive in the circumstances, namely that it was inconsistent with the sentences imposed on the other offenders and that insufficient weight was given to the mitigating features.
Was the starting point too high compared to that taken for other offenders?
Mr Jones’ complaint regarding parity is directed towards the starting point taken in relation to his offending compared to that of Mr Wu and Mr Gu.
Mr Tait submitted that Mr Jones’ involvement was very limited and in particular he was never present at the Jacaranda Motel as Mr Gu and Mr Wu were nor at the Kaukapakapa address. He was not directly involved in the actual manufacturing process as Mr Gu and Mr Wu were. On the other hand, as Mr Tantrum points out, Mr Jones was responsible for supplying a significant amount of the key ingredients for the manufacturing process.
We have already said that the respective roles and culpability of the various offenders is very much a matter for the trial judge to assess. Woodhouse J had the benefit of hearing the evidence over a three week period and of considering the issue again in the context of the disputed facts hearing. He was in a much better position than we are to make the assessment as to the relativities between these offenders and we see no basis on which to interfere with that assessment.
Weight given to mitigating factors
The second ground advanced for Mr Jones was that Woodhouse J gave insufficient weight to Mr Jones’ remorse. In considering Mr Jones’ personal circumstances the Judge said:
[46] In my assessment there was no significant indication of real remorse. The only reference to something of this nature is that you have not seen your two adult children since your arrest because you were ashamed of what had happened.
That summary fairly reflects the pre-sentence report. Although Mr Jones had indicated to the Probation Service that he had signed up to complete rehabilitation there was no confirmation of this fact. Whilst the reason for Mr Jones’ involvement in methamphetamine (pain relief following a serious work accident) may have justified a sympathetic response, there is no basis for interfering with the Judge’s discretion.
The appeal is dismissed.
Result
Mr Baird’s appeal against conviction is dismissed.
Mr Tang’s appeal against sentence is allowed. The sentence of 13 years imprisonment is quashed. A sentence of 11 and a half years imprisonment is substituted.
All other appeals against sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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