Cave v R - [2013] NZCA 236

IN THE COURT OF APPEAL OF NEW ZEALAND

CA541/2012
[2013] NZCA 236

BETWEEN	JOHN ROBERT CAVE Appellant
AND	THE QUEEN Respondent

Hearing:	15 May 2013
Court:	Randerson, Rodney Hansen and Lang JJ
Counsel:	J G Krebs for Appellant D G Johnstone and M R Walker for Respondent
Judgment:	18 June 2013 at 10:15am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

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REASONS OF THE COURT

(Given by Rodney Hansen J)

Introduction

Following trial before Judge Cunningham and a jury in the Auckland District Court, Mr Cave was found guilty of two charges of manufacturing methamphetamine, two charges of supplying a precursor substance and one count of possession of cannabis for the purpose of sale. He was sentenced to five years imprisonment.
Mr Cave appeals against conviction and sentence. He complains that evidence obtained in the course of an undercover operation was wrongly admitted. As a result, the trial was unfair and the convictions amounted to a miscarriage of justice. The sentence is said to be manifestly excessive.

Background

Since 1993 Mr Cave had been the owner and operator of the Colourplus store at Glen Eden. He held the Colourplus franchise which operates painting and decorating outlets nationwide. In February 2009, the Colourplus head office became concerned at the high volume of toluene passing through the Glen Eden store by comparison with amounts sold in other stores. The Glen Eden franchise was accounting for 90 per cent of toluene sold by Colourplus stores in New Zealand. Toluene is a solvent which has a legitimate use in the spray painting industry as a paint thinner. However, it is also widely used in methamphetamine manufacturing for the purpose of extracting methamphetamine from pseudoephedrine.
The police were informed and, in March 2009, carried out a training session at Mr Cave’s store. He professed surprise when told that toluene could be used in the manufacture of methamphetamine. He was provided with a pack of information and agreed to assist the police in future surveillance of his store.
Later in 2009, police undertook covert surveillance of the front and rear doors of Mr Cave’s store for the purpose of identifying customers purchasing large quantities of toluene. A number of individuals were identified and, when the police operation terminated, search warrants were executed which established that a number of those individuals were involved in the manufacture of methamphetamine.
While surveillance was ongoing, the police deployed undercover officers to make toluene purchases from Mr Cave’s store. They were fitted with listening devices which enabled the conversations to be recorded. After several visits, one of the undercover officers discussed purchasing six 20-litre containers of toluene. In the course of the discussion, Mr Cave indicated that he could buy 10 20-litre containers but that he could not order 10 at once as it would look “a bit dodgy”. The officer took delivery of one of the containers.
The second undercover officer went to the shop a few weeks later, introducing himself as a friend of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cave v R

Details

AGLC: Cave v R [2013] NZCA 236
Case: [2013] NZCA 236
Decision Date: 18 June 2013 at 10:15am

CaseChat Overview and Summary

John Robert Cave appealed against his conviction and sentence following a trial before Judge Cunningham and a jury in the Auckland District Court. Cave was found guilty of manufacturing methamphetamine, supplying precursor substances, and possession of cannabis for sale. He was sentenced to five years imprisonment. Cave argued that evidence obtained through an undercover police operation was wrongly admitted, leading to an unfair trial and a miscarriage of justice. He also argued that the sentence was manifestly excessive.

The court examined whether the undercover police officers had lawful authority to enter Cave's shop and record conversations. It was established that the officers had an implied licence to enter the shop for the purpose of making purchases and recording conversations. The use of recording devices did not deprive the officers of their licence to enter the premises. The evidence of the undercover officers was relevant to the methamphetamine charges and was properly admitted as propensity evidence. The court found that the convictions were safe and there were no grounds to disturb them.

Regarding the sentence, the court considered the quantity of methamphetamine that could have been produced using the toluene sold by Cave. The court compared Cave's actions to those of the pharmacist in R v Pulman and took into account the distinguishing factors. The court concluded that the sentence of five years imprisonment fairly reflected Cave's culpability.

The appeal against conviction and sentence was dismissed, and the final orders were made in favour of the respondent.

Orders