Beckham v R

[2012] NZCA 603

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA608/2011
[2012] NZCA 603

BETWEEN  MAX JOHN BECKHAM
Appellant

AND  THE QUEEN
Respondent

CA460/2012

AND BETWEEN             THE QUEEN
Appellant

AND  MAX JOHN BECKHAM
Respondent

Hearing:         11 October 2012

Court:             Stevens, Venning and Dobson JJ

Counsel:         S J Bonnar and S J Mount for Appellant in CA608/2011 and Respondent in CA460/2012
D J Boldt for Respondent in CA608/2011 and Appellant in CA460/2012

Judgment:      20 December 2012 at 2.00 pm

JUDGMENT OF THE COURT

AThe appeal against conviction (CA608/2011) is dismissed.

BLeave is granted to the Solicitor-General to appeal out of time against sentence (CA460/2012).

CThe appeal against sentence is allowed.

DThe sentence of 13 years and six months’ imprisonment, together with a minimum period of imprisonment of seven years, is quashed.  In its place a sentence of 18 years’ imprisonment is imposed, together with a minimum period of imprisonment of nine years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Stevens J)

Table of Contents

Para No

A major drug investigation  [1]
Factual background – abuse of process  [8]
High Court judgments   [22]

First stay judgment  [22]
Submissions on whether the calls were listened to  [24]
High Court findings  [25]
Release of information from calls  [28]
Judge’s conclusions on abuse of process  [29]
Crown application to destroy disks containing call data  [30]
Further evidence judgment  [34]
Second stay judgment  [38]

Abuse of process – legal principles  [43]
Issues on first part of appeal  [48]
First issue – error of law?  [54]

Appellant’s submissions  [54]
Legal test – our views  [60]

Second issue – errors of fact?  [73]

Appellant’s contentions  [73]
Preliminary issue – further evidence  [76]
Second ground – our evaluation  [82]

Third issue – a reduction in sentence?  [93]

Appellant’s submissions  [93]
Our evaluation  [94]

Challenge to the interception warrants  [95]

Factual background – chronology  [95]
Admissibility of interception evidence  [96]
Pre-trail steps leading to the admissibility challenge  [100]
Submissions of parties  [108]
Relevant statutory provisions  [113]

Interception warrant evidence – our evaluation  [116]
Sentence appeal  [126]

Factual background  [130]
Sentencing decision  [132]
Discussion  [134]

Result  [139]

A major drug investigation

1. In 2007 the police launched a major drug investigation referred to as “Operation Jivaro”.  Following termination of the investigation in December 2008 Mr Beckham and four co-accused were arrested and charged with serious drug dealing offences.  Following trial in the Auckland High Court on an indictment containing 57 counts of drugs and money-laundering charges the appellant was found guilty and was convicted on 24 counts.

2. The Crown alleged, and the jury accepted, that the appellant had been a methamphetamine manufacturer and dealer on a significant scale over a period of at least 18 months.  His convictions included two charges of manufacturing methamphetamine;  two charges of conspiring to manufacture methamphetamine;  two counts of possession of methamphetamine for supply;  eight counts of supplying methamphetamine;  one count of conspiring to supply methamphetamine;  one count each of supplying cocaine, supplying MDMA, possession of MDMA for…