| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA456/2015 [2016] NZCA 207 |
| BETWEEN | KAKADA KEVIN CHEA |
| AND | THE QUEEN |
| CA469/2015 | |
| BETWEEN | KIEN TRUNG DAO |
| AND | THE QUEEN |
| CA724/2015 | |
| BETWEEN | MICHAEL EDWIN DEBRECENY |
| AND | THE QUEEN |
| Hearing: | 6 April 2016 |
Court: | Stevens, Asher and Williams J |
Counsel: | A F Rickard-Simms for Appellant Chea |
Judgment: | 19 May 2016 at 10.00 am |
JUDGMENT OF THE COURT
____________________________________________________________________
AWe grant an extension of time within which Michael Edwin Debreceny may bring his appeal.
BThe appeals against conviction by all three appellants are dismissed.
CThe appeals against sentence by Kien Trung Dao and Michael Edwin Debreceny are dismissed.
DThe appeal against sentence by Kakada Kevin Chea is allowed and the sentences imposed in the High Court on the lead offences of importing methamphetamine are quashed.
EIn their place sentences on the lead offences of 16 years and 8 months’ imprisonment are substituted. The minimum period of imprisonment of 50 per cent remains in place. All other sentences imposed are confirmed, including their concurrent nature.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
Table of Contents
Para No
A sophisticated commercial operation [1]
High Court trial [7]
Conviction appeal by Mr Chea [12]
Sufficiency of evidence of importation [13]
Inconsistent verdicts [21]
Use of a representative charge for possession of
methamphetamine for supply [26]Sufficiency of evidence on the supply charge [33]
Result[36]
Conviction appeal by Mr Dao [37]
Sufficiency of evidence against Mr Dao on supply count [38]
Splitting of the possession for supply and supply charges [42]
(a)Possession for supply [43]
(b)Supply [46]
Sufficiency of evidence on receiving charges [49]
Admissibility of expert evidence [53]
Failure to put Mr Dao’s defence [59]
Misdirections as to the use of the evidence [65]
(a)Expert evidence [66]
(b)Text messages [68]
Misdirection on reasonable doubt [69]
Misdirection on the elements of importation [73]
Result [79]
Conviction appeal by Mr Debreceny [80]
Insufficiency of evidence [83]
Inconsistent verdicts [93]
Failure to put Mr Debreceny’s defence [97]
Result [101]
The sentence appeals [102]
Mr Chea [104]
Mr Dao [113]
Mr Debreceny [120]
A sophisticated commercial operation
The activities of the appellants, Messrs Chea, Dao and Debreceny, involving what became known as the “Chews Lane methamphetamine ring”, led to a police investigation dubbed “Operation Rubber”. This investigation uncovered a sophisticated commercial drug operation with international supply connections. The Crown case was that methamphetamine was imported from Canada, using the contacts Messrs Chea and Dao had in both Vietnam and Canada to source the product. To avoid detection at the point of entry to New Zealand, the methamphetamine was mixed with an inorganic substance (thought to be plaster) and a green dye added. When set it appeared to be a solid green object resembling Packages were sent from Toronto, Canada to Wellington in July 2013, October 2013 and February 2014. The latter two packages were imported with labelling stating their contents to be “green jade and jeans”.
The packages were sent to empty houses in the Wellington region using the New Zealand CourierPost Track and Trace system. For the October 2013 package, once it had arrived at the address, Mr Debreceny contacted the courier driver who delivered the mail to the area and had the package re-delivered to his house. He then passed the package on to Messrs Chea and Dao. For the delivery in February 2014, Mr Debreceny was unsuccessful in having the package redirected to his house. On this occasion, Mr Dao contacted CourierPost depot and claimed the package was for his girlfriend but had been incorrectly addressed. The package was picked up by Mr Dao.
Between 2013 and 2014, significant amounts of money were transferred to various overseas locations. Between 7 May and 18 November 2013, Mr Chea transferred $46,600 to two persons in Vietnam, with a further $7,480 sent via Ms Reny Yap (Mr Chea’s flatmate from his Taranaki Street apartment). Between 20 January and 7 May 2013, Mr Dao transferred $111,864.87 to various bank accounts in Vietnam, including $8,500 transferred via Ms Yap on 3 March 2014. On 15 April 2013, $1,711.15 was transferred by Mr Dao to a bank account in the United States of America. A total of $30,000 was transferred to four different people in Canada between 28 July and 26 August 2013, also by Mr Dao.
Once the packages reached Messrs Chea and Dao, steps were taken to reconstitute the methamphetamine. On the Crown’s case, the jade-like object was broken up and ground down into a fine powder. This powder was then soaked in an alcohol or acetone solution to enable the methamphetamine to be extracted from the powder. That solution was then heated so that the liquid would evaporate, leaving crystal methamphetamine. The Crown case was that this methamphetamine was then cut down, packaged and sold.
On 7 March 2014, the Police executed a search warrant for the Chews Lane apartment where Messrs Chea and Dao, and Mr Chea’s girlfriend, Ms Cummins, all lived. The Police found a table grill next to the stove on which there was a glass casserole dish containing a brown liquid being heated. Police also located assorted glassware, powders and liquids, all of which later tested positive for methamphetamine. In Mr Chea’s bedroom, Police discovered $39,000 in cash, a number of small snaplock plastic bags (some containing white crystals), and pipes used to smoke methamphetamine. In Mr Dao’s bedroom, around $3,500 in cash was located, along with scales containing traces of methamphetamine, snaplock bags and handwritten (in Vietnamese) instructions for re-crystallising methamphetamine. More scales, pipes, cash and methamphetamine were located in the living room and kitchen of the apartment. Police also located a large number of electronic devices; of those, three laptops, an iPad, and an iPhone were found to be stolen property.
Police also searched Mr Chea’s Taranaki Street apartment (where he rented a room), finding more glass jars, plastic containers and liquid methamphetamine. They also searched vehicles belonging to Messrs Chea and Dao and Ms Cummins. Inside Mr Dao’s Renault they found a laptop bag containing 44 small snaplock bags, each filled with methamphetamine. The methamphetamine in the car amounted to 1.138 kilograms in total, worth around $1 million.
High Court trial
The three appellants, along with Ms Cummins, stood trial in the High Court at Wellington before Dobson J and a jury. The indictment contained charges of importing methamphetamine (on three occasions in July and October 2013 and February 2014), possession of methamphetamine for supply, supplying methamphetamine, and receiving stolen property. The jury returned guilty verdicts against Messrs Chea and Dao on importing methamphetamine in October 2013 and February 2014.[1] Mr Debreceny was found guilty of the October 2013 importation only. On the supply charges Messrs Chea and Dao were found guilty of one representative count of supplying methamphetamine (between 21 October 2013 and 7 March 2014) and of one count of possession of methamphetamine for supply. Both were found not guilty on a specific charge of supplying methamphetamine on 21 February 2014. Messrs Chea and Dao were also found guilty of several counts of receiving stolen property.[2]
[1]Messrs Chea and Dao were acquitted of the count of importation in July 2013, as was Mr Debreceny.
[2]Ms Cummins was found guilty of one count of possession of methamphetamine for supply. She did not appeal against her conviction or sentence.
At sentencing the Judge described their respective roles in the operation.[3] The Judge found Mr Chea to be the “boss”[4] and described him as being in control, at least in New Zealand, of the whole operation.[5] The Judge found that Mr Dao was “heavily involved in all aspects” of the operation,[6] including the subsequent possession and supply of the methamphetamine and the making of a number of payments to bank accounts in Vietnam.[7] However, the Judge described Mr Dao’s role as being less than Mr Chea’s “lieutenant” and more akin with a “non‑commissioned officer”:[8]
Somebody not at the very bottom but still subject to instructions. I am satisfied that is appropriate. You were certainly more than a foot soldier. I am also satisfied that you were willingly involved in all aspects of the operation and indeed likely had a greater role in the reprocessing and packaging activities in terms of the physical work.
[3]R v Chea [2015] NZHC 1806 [Sentencing notes].
[4]At [15].
[5]At [31].
[6]At [17].
[7]At [3].
[8]At [33].
Mr Debreceny was found to have knowingly facilitated the receipt and delivery to Messrs Chea and Dao of the October 2013 package.[9] However, the Judge found that Mr Debreceny’s involvement was materially less significant than that of Messrs Chea and Dao: Mr Debreceny did not make any significant financial gain and was “somewhat foolish” and oblivious to the consequences, although well aware that he was involved in importing a significant quantity of methamphetamine.[10]
[9]At [4].
[10]At [40].
In respect of the supply of methamphetamine, the Judge found that Mr Chea was more involved in on-selling activity than Mr Dao and that the supply would have amounted to not less than half a kilogram (half of the October 2013 importation).[11] For the charge of possessing methamphetamine for supply, around 1.17 kg of the methamphetamine found during the search was attributed to Messrs Chea and Dao.[12] The Judge also found the stolen computers and iPad found in the Chews Lane Apartment were likely received in payment for drugs supplied.[13] The totality of the offending and drugs involved led to lengthy sentences of imprisonment being imposed.
[11]At [34]. Dobson J allowed for the possibility that Messrs Chea and Dao, along with Ms Cummins, had consumed half the October 2013 import.
[12]At [15]–[17].
[13]At [38].
Subsequently, all three appellants have appealed against their convictions and sentences. We address the conviction appeals first.
Conviction appeal by Mr Chea
Mr Chea appeals against conviction on the following grounds:
(a)The Judge erred in permitting the importation charges to go to the jury, because there was insufficient evidence from which the jury could draw a legitimate inference of guilty.
(b)The verdicts on the importation charges are inconsistent and thus unreasonable.
(c)The Judge erred in permitting the Crown to use a representative charge and in allowing the charge to go to the jury on the basis that Mr Chea (and Mr Dao) possessed all the methamphetamine located at the time of the search.
(d)The guilty verdict on the supply charge was unreasonable as there was no evidence of any actual supply.
Sufficiency of evidence of importation
For Mr Chea, Mr Rickard-Simms submits that Dobson J erred in permitting the importation charges to go to the jury. Following the close of the Crown’s case, all appellants made an unsuccessful application for discharge pursuant to s 147 of the Criminal Procedure Act 2011 (CPA).[14] As the evidence in relation to the importation charges only reached the level that would lead a jury to speculate, rather than legitimately draw inferences on the basis of known facts, as to what was in the packages, Mr Rickard-Simms submits the Judge was wrong to dismiss the discharge application. The guilty verdicts on the importation charges are said to be unreasonable because there was insufficient evidence on which the jury, properly directed, could convict.
[14]R v Chea HC Wellington CRI-2014-085-2491, 19 June 2015 [Ruling 3].
There is no doubt about the applicable legal principles. Under s 232(2)(a) of the CPA the Court must allow an appeal if satisfied that, having regard to the evidence, the jury’s verdict was unreasonable. The applicable principles are summarised in the judgment of this Court in Wiley v R.[15] The Supreme Court in Owen v R emphasised that there is no practical distinction between an unreasonable verdict and one that cannot be supported having regard to the evidence.[16] A guilty verdict based on no or insufficient evidence must necessarily be an unreasonable verdict. The Court must perform a review function, and cannot just substitute its own view of the evidence.[17] The Court will not lightly interfere with the verdict and will only allow an appeal where satisfied that no jury applying the criminal standard of proof could reasonably have reached a guilty verdict on the evidence.
[15]Wiley v R [2016] NZCA 28 at [10(c)].
[16]Owen v R [2007] NZSC 102, [2008] 2 NZLR 37 at [12].
[17]At [17].
Here, the approach of the Crown was to rely on what was found at the Chews Lane apartment on 7 March 2014, including the label for the third package, and work back from that point to mount a circumstantial case of importation. This included the text messages supporting the importation of items and indications that large amounts of money were transferred overseas via Vietnam and Canada. There was also evidence of the three parcels being cleared by Customs on 22 July 2013, 1 October 2013 and 12 February 2014.
Mr Chea appears to accept there was sufficient evidence that the two packages that were imported into New Zealand from Canada in October 2013 and February 2014 eventually made their way to him and Mr Dao. But he says there was insufficient evidence to support the inference that those packages contained methamphetamine.[18] Mr Richard-Simms submits the Crown adduced no direct evidence that there was methamphetamine in the parcels when they were imported and there was no connection between the parcels and the items found at the apartments. The following factors are said to support the insufficiency of the evidence:
(a)The evidence of Ms Tester (a Customs Officer) was that the packages for which the delivery slips were located were not tested for illicit substances. Ms Tester conceded there is no way of definitively knowing what was in the three parcels or that it was methamphetamine.
(b)The police were required to track backwards from the label located on 7 March 2014. Because of this, there was no ability to determine the nature of the item imported and the only relevant information was “green jade and jeans”.
(c)There was no actual evidence that the product imported was methamphetamine in the form of “jade” items that required breaking down and re-crystallising.
(d)There is no link between the parcels imported and the material tested at the Chews Lane apartment, other than the colour green. Had the label not read “green jade” there would be nothing to link the parcels with any illicit substances and the Crown would have no theory of the case in relation to any importation.
(e)The timing of the importations does not assist. One parcel was imported nearly a month prior to the execution of the search warrant, the other two being imported five months and eight months prior to the search.
(f)There was no evidence adduced that the package located at the Chews Lane apartment had any trace of methamphetamine in it.
[18]As we will discuss below, Mr Debreceny’s point on appeal is broader — that there was insufficient evidence as to the contents of the October 2013 package and as to his involvement.
Having reviewed the evidence presented at the trial, we are satisfied the importing charges against Mr Chea were amply supported by the circumstantial evidence adduced. Whilst it is true that there was no definitive evidence presented as to what the packages contained, the clear inference that could be drawn from the evidence as a whole was that there was methamphetamine in the packages imported in October 2013 and February 2014. In particular:
(a)It was clear the imported packages contained something that was both illicit and of significant value. The importers went to great lengths to conceal the fact the packages were intended for Messrs Chea and Dao. Both packages were sent to vacant addresses and were effectively intercepted from the courier company by Mr Debreceny (the October package) and Mr Dao (the February package). The text and telephone communications between the appellants around the times of the arrival of the packages, both amongst themselves and with contacts in Canada and Vietnam, illustrated the value of these packages to them and the need to secure their safe arrival.[19]
[19]We discuss this evidence in more detail when considering Mr Debreceny’s conviction appeal.
(b)There were a number of text messages between the appellants containing references that the police drug expert, Detective Senior Sergeant (DSS) Leitch, considered were consistent with a methamphetamine re-crystallisation process, later found in progress at the Chews Lane apartment:
(i)On 28 October 2013, five days after the October package had been received by Mr (Mike) Debreceny, Mr Chea texted Mr (Kien) Dao, “Kien come to mike house to pick up green pur(-)e”[sic].
(ii)On 21 November 2013, Mr Chea sent a text message to a third party saying, “Properly not possible uce cause it’s still dirty and need cooking”. Mr Russell, an Institute of Environmental Science and Research (ESR) scientist, opined that the re‑crystallisation process found at the Chews Lane apartment, if carried through to completion, would have left a brown solid that would have required washing with acetone to remove the colouration.
(iii)On 13 and 14 December 2013, there was a series of texts between Messrs Chea and Debreceny during which Mr Chea asked Mr Debreceny to bring him “A”. The following day Mr Chea’s cellphone texted a third party apologising for being stressed as “I broke my container and I was … 20–30 k lost babe …”. DSS Leitch opined the reference to “A” was most likely acetone, which is one of the substances used in the re‑crystallisation process. Earlier texts had been exchanged between Mr Dao and a third party on 23 September 2013 in which they discussed the purity of acetone that the acetone seller was offering.
(iv)Between 21 and 24 February 2014, a few days after Mr Dao had collected the package from the Courier-Post depot, there was an exchange of text messages between Messrs Chea and Dao, which included comments, “Do u want me to finish the kitchen? I wasn’t touch the cook area…”, “Could u clean it with water”, “Just clean? I am about to bring the old green to do as well”, “Do u want to make all in one, and filter?”, “Yes”.
(c)On the same day that Mr Dao picked up the February 2014 package, 1.5 kilograms of MSM (a product that can be used for cutting methamphetamine) was purchased from Trademe using Mr Chea’s credit card.
(d)There was evidence of an ongoing methamphetamine re‑crystallisation process at the Chews Lane apartment, supporting the Crown’s case that the February package had contained methamphetamine suspended in a green, inert substance, because:
(i)there was a pot on a hotplate that contained methamphetamine and acetone;
(ii)there were various items of equipment, including a blender and a glass bowl containing a green powdery residue that tested positive for methamphetamine; and
(iii)there were handwritten instructions found that described the re‑crystallisation process.
(e)There was a large and very valuable quantity of methamphetamine, in excess of 1.1 kilograms, found in the Renault car and, to a lesser extent, in the Chews Lane apartment itself. There was no evidence suggesting that that methamphetamine was sourced from anywhere else.
(f)Despite the fact that both the October and February packages purported to contain “jade” (according to the Customs’ documentation), no jade was ever located by the police.
(g)The similarities between the circumstances of the February 2014 package and the October 2013 package, coupled with the text communications referred to above, support an inference that the two packages contained the same thing, namely methamphetamine.
Dobson J heard similar submissions to those made on appeal in the context of a CPA s 147 application for a discharge at the conclusion of the prosecution case.[20] We agree with the Judge’s reasons when, in ruling against the application, he said:
[8] As to the adequacy of the evidence on the importation charges, [Ms Feltham] characterised the Crown’s case as relying on circumstantial evidence and inferences. The Crown acknowledges that none of the three packages were inspected on entry into New Zealand but the jury might validly reason backwards from the discovery of a very large amount of methamphetamine when the apartment and the Renault car were searched, there was evidence of a re-crystallisation process occurring in the flat and abundant materials for doing that. In addition, substantial amounts of cash were found. The Crown intended to invite the jury to look at the texts and to the process that had been undertaken. There was evidence both at Chews Lane and at the Taranaki Street flat of residues of a green substance consistent with transformation of imported materials described as “green jade”.
[9] I accept that the totality of the Crown evidence is sufficient for the importation charges against Messrs Chea and Dao to be left to the jury, along the lines Ms Feltham foreshadowed in her submissions.
[20]Ruling 3, above n 14.
It was accepted that there was no direct evidence that there was methamphetamine in the packages. Rather, the jury was asked to draw an inference from the circumstantial evidence presented by the Crown. The drawing of an inference is itself an exercise in fact-finding. As this Court noted in R v Kinghorn:[21]
Inference must be carefully distinguished from conjecture or speculation. There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish, in some cases the other facts can be inferred with as much practical certainty as if they had been actually observed. In other cases the inference does not go beyond reasonable probability. But if there are no positive proved facts from which the inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
[21]R v Kinghorn [2014] NZCA 168 at [20], citing Caswell v Powell Duffryn Associated Collieries Ltd [1940] AC 152 (HL) at 169–170.
We conclude there was ample circumstantial evidence available to establish the Crown case beyond a reasonable doubt. This is not a case of the jury being left to speculate or guess at the contents of the October 2013 and February 2014 packages. There were many objective facts in the evidence adduced from which proper inferences could safely be drawn. We consider the importation charges were supported by a strong chain of circumstantial evidence, the highlights of which we have summarised above. Viewed in totality, the evidence gives rise to the irresistible conclusion that the two packages contained methamphetamine. It cannot be said that the jury’s guilty verdicts on the two importation charges were unreasonable having regard to the evidence. This ground of appeal therefore fails.
Inconsistent verdicts
Mr Rickard-Simms also submits that guilty verdicts for the two importation charges were unreasonable because they were inconsistent with the acquittal on the July 2013 charge. He contends the jury was confused, as it must either have been satisfied that there was methamphetamine in the packages imported or there was not. It is not reasonable for the jury to infer guilt in respect of the latter two charges but not the first charge, because in respect of all charges there remains no evidence of what was in the parcels.
There is no dispute as to the applicable law.[22] Unreasonableness will be found where the court concludes that no reasonable jury could, on evidence properly used, have arrived at different verdicts on the different counts.[23] The Supreme Court in B (SC12/2013) v R set out some principles of general application when a challenge to conviction based on inconsistency is made:[24]
(a)There is a distinction between cases involving legal inconsistency and those involving factual inconsistency. Legal inconsistency occurs when two verdicts cannot, as a matter of law, stand together.[25]
(b)Factual inconsistency occurs when, given the evidence, two verdicts cannot stand together. This may be between verdicts involving the same accused or between verdicts involving different persons charged in connection with related events.
(c)In relation to factual inconsistency arising from “guilty” and “not guilty” verdicts on a multiple count indictment against one defendant, the test is one of “logic and reasonableness”.[26]
(d)Courts are reluctant to conclude that the jury verdicts are inconsistent, both because the jury’s function must be respected and because of a general satisfaction with the way juries perform their role. If there is some evidence to support the verdict said to be inconsistent, an appellate court will not usurp the jury’s function by substituting its view of the facts for that of the jury. But, any reasonable explanation for the difference between the two verdicts “must be found in the evidence properly used”.[27]
(e)An appellate court will intervene in cases where the different verdicts returned by the jury represent “an affront to logic and commonsense which is unacceptable and strongly suggests a compromise of the performance of the jury’s duty”.[28]
(f)The obligation to establish inconsistency rests with the person challenging the conviction. Where inconsistency is established, the court must make such consequential orders as the justice of the case requires.
[22]Under s 385(1)(a) of the Crimes Act 1961.
[23]B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [24] per Elias CJ.
[24]At [68] per McGrath, Glazebrook and Arnold JJ.
[25]Which does not arise here.
[26]B (SC12/2013) v R, above n 23, at [68(c)].
[27]Citing R v O (No 2) [1999] 1 NZLR 326 (CA).
[28]B (SC12/2013) v R, above n 23, at [68(e)].
On appeal the focus is on the reasons for conviction rather than acquittal; the decisive question is not whether the acquittal(s) are reasonable but whether the conviction was not.[29] This requires the appellate court to perform a review function and examine the evidence before the jury.[30] Ultimately, the court must be satisfied there is a logical and reasonable explanation for the differing verdicts and that these were not simply the result of improper compromise.[31]
[29]At [69], citing R v Pittiman 2006 SCC 9, [2006] 1 SCR 381 at [10].
[30]Owen v R, above n 16, at [13].
[31]B (SC 12/2013) v R, above n 23, at [106].
Here, we are satisfied there is a logical and rational basis for the jury’s differentiation between the acquittal for the alleged July 2013 importation and conviction for the later two importations. The evidence of what was in the packages for the two later importations was much stronger, thus providing a proper basis for the jury to be satisfied beyond reasonable doubt on these two charges:
(a)There was evidence Messrs Chea and Dao possessed methamphetamine after the arrival of the October 2013 and February 2014 packages. There was also evidence of dealing between October 2013 and March 2014 and a large quantity of methamphetamine was found in the Chews Lane apartment during the March 2014 search. Similar evidence was not available in relation to the July 2013 importation.
(b)The July 2013 package did not have associated Customs documentation. The documentation for the October 2013 and February 2014 packages revealed both the weight of the packages[32] and that they purported to contain “green jade and jeans”. This evidence supported the Crown case that methamphetamine was being disguised as a solid green object to be re-crystallised in New Zealand, given the evidence found in the apartment of methamphetamine, green substance and re-crystallisation instructions. Once the jury inferred that the February 2014 package included a significant amount of methamphetamine mixed with something green, the matching description and similar weight of the October 2013 package allowed a further inference to be drawn. The July 2013 package could not be linked in the same way.
[32]7.5 kg and 5.44 kg respectively.
The answer to the submission the jury must have been confused (because there was either methamphetamine in all of the packages or there was not) is that the circumstantial evidence was much stronger for both the October 2013 and February 2014 importations. It is logical and rational that the jury might entertain a reasonable doubt as to whether the July 2013 package contained methamphetamine but be satisfied beyond reasonable doubt about guilt on the later two packages. We consider the jury, rather than being confused, erred on the side of caution, by giving Mr Chea the benefit of the doubt in relation to the July 2013 importation. We conclude that the jury’s convictions on the October 2013 and February 2014 importation charges cannot be seen as unreasonable due to an inconsistency between verdicts. This ground of appeal therefore fails.
Use of a representative charge for possession of methamphetamine for supply
Mr Rickard-Simms submits the use of a representative charge for possession of methamphetamine for supply effectively took questions of fact away from the jury and left them to the trial Judge at sentence. This was optimistically said to negate Mr Chea’s right to a trial by jury. The Crown argued at trial that both Mr Chea and Mr Dao operated a joint enterprise and together possessed all the methamphetamine located. There was a sufficient quantity for the presumption to operate.[33] Mr Rickard-Simms submits this approach was flawed and left no room for the jury to find (hypothetically) that Mr Dao alone was in possession of the methamphetamine found in Mr Dao’s Renault. Mr Chea’s case was he had no knowledge of the methamphetamine in Mr Dao’s car; the charges ought to have been divided to reflect the various amounts located. This would have given the jury the opportunity to differentiate between the respective culpabilities of each party. It would also have made the sentencing processes more accurate and individualised to precise amounts found to have been established by the jury. Mr Rickard-Simms submits a miscarriage of justice has occurred as a result.
[33]Under sch 5 of the Misuse of Drugs Act 1975, possession of more than five grams of methamphetamine gives rise to a rebuttable presumption that the drugs are possessed for the purposes of supply.
The use of the representative charge was challenged during the trial. In his ruling the Judge referred to the Crown case being that there was a joint enterprise involving all three of the Chews Lane flatmates and that the three associates “all enjoyed possession of some or all of the three significant packages of methamphetamine found”.[34] The Judge also said:[35]
There is a tenable basis for the Crown to make out that each of the defendants charged with possession for supply had the requisite connections with it to be found to be in possession of all, or more than one, of the packages of methamphetamine. Ms Feltham acknowledged that a prospect may arise, if all are found guilty, of a disputed facts hearing on whether the conviction ought properly to relate to less than all of the methamphetamine for the purposes of sentencing. That is not a particularly attractive prospect, but the extent of the Crown evidence is not so lacking as to require a re‑definition of the methamphetamine that should be individually attributed to each of those charged with its possession.
[34]Ruling 3, above n 14, at [12]. 32 grams of methamphetamine were found in the living room and kitchen of the apartment, 11 grams in Ms Cummins’ makeup case, and 1.1 kilograms in Mr Dao’s car.
[35]At [13].
We agree with the Judge’s decision on this issue for the reasons he gave. No lack of a fair trial has been established. The jury was not told it had to find Mr Chea guilty of possessing all the methamphetamine or none; the Judge directed that it might be satisfied that each appellant had possession of only one or other of the quantities of methamphetamine found. Moreover, each amount found was above the amount needed for the presumption for supply to apply. Even if the jury considered Mr Chea was not in possession of the methamphetamine found in Mr Dao’s car, it clearly accepted he was in possession of one of the other lots of methamphetamine found. The weight of that methamphetamine was still such that the presumption for supply applied. The guilty verdicts were therefore inevitable.
Plainly, separate charges would be required where discrete transactions could be identified. But that does not apply to the present case. Except in relation to the text exchange pertaining to the specific supply charge, the case against Mr Chea did not rely upon volumes of specific text message transactions but rather was circumstantial.
Here, the use of the representative charge of supplying methamphetamine was consistent with this Court’s guidance in Dryden v R:[36]
[R]epresentative charges will be appropriate where a continuing course of conduct is alleged, but the prosecution evidence does not enable particularity to be given to discrete instances of offending. Applying this principle, it may be appropriate for the Crown to lay representative charges in drugs cases where there is evidence of an ongoing course of conduct, but the Crown cannot establish discrete transactions or events with any degree of particularity …
The Crown may be able to point to circumstantial evidence suggesting that the accused has supplied a particular drug at some stage in the past. It may not be possible, however, for the Crown to establish when or to whom the supplies were made. Text messages or intercepted communications may in some cases prove that a discrete transaction or event occurred, but that is not always the case. Typically, they may suggest a transaction is about to occur, but often will not confirm that it actually took place. In a case involving a pattern of ongoing conduct of that type, it may similarly be appropriate for the Crown to lay a representative charge. The jury will be entitled to find the charge proved if they are sure the accused has supplied methamphetamine to another person on at least one occasion during the period covered by the charge.
[36]Dryden v R [2013] NZCA 232 at [21]–[22] (footnotes omitted).
We are therefore satisfied no miscarriage of justice arises from the failure to separate the charges for each amount of methamphetamine found. The defence for Mr Chea was the same in respect of all the amounts of methamphetamine found: that it was Mr Dao’s, not his. Plainly the jury regarded Mr Chea as involved in a joint enterprise importing methamphetamine and there was ample evidence to support this view. It therefore follows that the jury rejected Mr Chea’s defence and regarded the methamphetamine found as being the product resulting from the February importation and found both in Messrs Chea and Dao’s joint possession of all of the methamphetamine located during the search.
Finally, in terms of the flow-on effects to the sentencing process, it is true that it was left for the Judge to determine the precise culpability of Mr Chea in terms of the amount of methamphetamine possessed. However, the jury found Mr Chea guilty of the two importations and the methamphetamine found was the result of the re-crystallisation of the product imported. It is unsurprising that the Judge at sentencing was satisfied Mr Chea was in joint possession with Mr Dao of most of the methamphetamine found.
Sufficiency of evidence on the supply charge
Mr Rickard-Simms submits there was no evidence of any actual supply of methamphetamine by Mr Chea. While the text message data indicates methamphetamine was offered for supply, the available evidence reaches a level no higher than requests by buyers for methamphetamine. On this basis, Mr Rickard‑Simms submits that there is no basis upon which a jury could have safely reached its guilty verdict and therefore such a verdict is unreasonable.
At the outset we note the Judge declined the application for discharge under s 147 by Mr Chea at the end of the Crown case, rejecting the submission there was insufficient evidence to leave a charge of supply to the jury.[37] Dealing then with Mr Rickard-Simms’ submission that the text messaging data is insufficient to convict Mr Chea, this overlooks the fact that there was a great deal of other circumstantial evidence from which the jury could be sure Mr Chea was involved in at least one supply between October 2013 and March 2014. In particular:
(a)The jury was clearly satisfied that Mr Chea was involved in importing methamphetamine on two occasions in October 2013 and February 2014. The Crown argued the supply of the resulting product was a natural progression from importing to the realisation of profit. An obvious inference from the second importation was that the October 2013 methamphetamine had already been distributed by the time of the February importation.
(b)Many indicia of methamphetamine dealing were found in Mr Chea’s apartment and bedroom, including electronic scales, snaplock bags (some containing methamphetamine) and over $39,000 in cash. The inference that could be drawn from this evidence is that orders for methamphetamine were being filled by Mr Chea.
(c)Propensity evidence had been admitted in respect of Mr Chea’s prior convictions for supply and conspiring to supply methamphetamine in 2010. That offending had involved the use of text messaging to offer to supply drugs to his buyers.
[37]Ruling 3, above n 14, at [14].
Further, while the text message data was not necessarily conclusive evidence of supply, it supported an inference that at least one instance of supply had occurred. There was evidence of one exchange in which Mr Chea indicated he would dispatch Mr Dao to send “something” to a third party, and an exchange between Messrs Chea and Dao in which references to “halves” were made.[38] This, coupled with the physical evidence located in the apartment, gave rise to a strong inference that a supply of methamphetamine had occurred. It was entirely open to the jury to conclude that both Messrs Chea and Dao were involved in a joint enterprise to import and then supply methamphetamine in commercial quantities. We are satisfied there was ample evidence against Mr Chea on the supply charge. It cannot be said that the jury’s verdict on this charge was unreasonable as based on a lack of evidence. This ground of appeal fails.
Result
[38]Detective Senior Sergeant (DSS) Leitch gave evidence that this was a methamphetamine-dealing related term.
All grounds of the conviction appeal advanced by Mr Chea fail. The appeal against conviction is therefore dismissed.
Conviction appeal by Mr Dao
Mr Dao was found guilty of two counts of importing methamphetamine, one count of possession for supply, one count of supplying and four counts of receiving. Mr Dao appeals on the grounds that:
(a)the verdicts of the jury in regards to two of the importation charges are inconsistent, rendering the conviction unsafe;[39]
(b)there was insufficient evidence in relation to the count of supplying methamphetamine to convict;
(c)the possession for supply charge should have been split into specific charges to reflect each amount so that Mr Dao could adequately defend it, and the supply charges should have been split more than they were;
(d)there was insufficient evidence to convict the appellant on the four receiving charges, as there was no evidence on which the jury could be satisfied that he received the item being reckless as to whether or not it was stolen;
(e)the expert evidence of DSS Leitch should not have been admissible as he was “far too close to the action”;
(f)the Judge failed to adequately put the defence case;
(g)the Judge misdirected the jury in his directions on the use of aspects of the evidence, particularly the expert evidence of DSS Leitch and the text messages;
(h)the Judge misdirected the jury on reasonable doubt through a failure to give the full Wanhalla direction;[40] and
(i)the Judge misdirected the jury on the elements of the importing charges.
Sufficiency of evidence against Mr Dao on supply count
[39]During the hearing Mr Tennet informed the Court this ground was abandoned. This decision was appropriate given that we have rejected a similar ground advanced by Mr Chea: at [21]‑[25] above.
[40]R v Wanhalla [2007] 2 NZLR 573 (CA) at [49].
We have already rejected the same ground advanced by Mr Chea.[41] We incorporate our further reasons for so doing into this part of the judgment, particularly in relation to the nature and scope of the joint enterprise operated by Messrs Chea and Dao.
[41]At[33]–[35] above.
For Mr Dao, Mr Tennet submits that there was insufficient evidence to convict Mr Dao on the representative charge of supplying methamphetamine. Mr Tennet relies on the text message data, submitting it was insufficient for the jury to conclude that Mr Dao had been involved in a supply between 21 October 2013 and 7 March 2014. The insufficiency of evidence is exemplified by comparison with the texts in relation to the specific supply charge.[42] Mr Tennet submits no reasonable jury properly directed could have convicted Mr Dao on the representative supply charge.
[42]The specific supply charge related to text messages on 21 February 2014 in which Mr Chea asked Mr Dao to “bring 1 egg to meet me in Tawa”. DSS Leitch gave evidence that he believed “egg” meant an ounce of methamphetamine, although he had never come across this term before. Messrs Dao and Chea were acquitted of this specific charge.
The law on unreasonable verdicts has been set out above.[43] The difficulty with Mr Tennet’s submission in regards to the lack of text message evidence is that it overlooks the rest of the Crown’s case. Having reviewed the evidence, it is clear that there was a wealth of other circumstantial evidence from which the jury could be sure Mr Dao was involved in at least one supply transaction between October 2013 and March 2014. In particular:
(a)The jury was satisfied that Mr Dao was involved in importing methamphetamine in both October 2013 and February 2014. The sale of that product was a natural progression from importing to the realisation of profit. The obvious inference from the second importation was that the methamphetamine from the October 2013 importation had already been distributed.
(b)There was a lot of methamphetamine paraphernalia relating to supply found in the Chews Lane apartment. In Mr Dao’s bedroom were electronic scales, snaplock bags, around $3,000 in cash. The inference of supplying is supported by the discovery in Mr Dao’s Renault vehicle of over 1.1 kg of methamphetamine packaged into 44 separate snaplock bags.
(c)Whilst it is true that many of the incriminating text messages between October 2013 and March 2014 implicated Mr Chea, some pointed to Mr Dao’s involvement in the dealing, including:
(i)an exchange in which Mr Chea indicated that he would dispatch Mr Dao to send “something” to a third party; and
(ii)an exchange of texts in which Mr Dao and Mr Chea were making references to “halves”, which the jury was entitled to infer were references to methamphetamine quantities.[44]
[43]At [14] above.
[44]DSS Leitch gave evidence that “halves” was an amount in which methamphetamine is commonly sold.
We are satisfied there was ample circumstantial evidence when viewed in totality to support the conviction of Mr Dao. The text messages involving Mr Dao are not to be viewed in isolation. The context is one of a substantial joint enterprise. The jury’s verdict, having regard to the whole of the evidence, cannot be seen as unreasonable. This ground of appeal fails.
Splitting of the possession for supply and supply charges
Mr Tennet submits the charge of possession for supply of methamphetamine should have been split into a number of specific charges to reflect each amount of methamphetamine found, and that the representative supply charge should have been split more than it was.
(a)Possession for supply
Mr Tennet submits it is impossible to tell from the guilty verdict on the possession for supply charge whether the jury found Mr Dao guilty of possessing the methamphetamine in the Renault car, or that found in the Chews Lane apartment, or that found in Ms Cummins’ handbag (also located at the Chews Lane apartment). Thus the charge was unfair and hindered Mr Dao’s ability to defend adequately the possession for supply charge.
We agree with the Judge’s ruling that on the facts it was open to the Crown to make the possession for supply charge represent the entire amount of methamphetamine found.[45] No miscarriage of justice arose from the failure to separate the charges for each amount of methamphetamine found, in the sense that there was no real possibility of a different verdict. The defence was the same in respect of all the amounts of methamphetamine found: that it was Mr Chea’s methamphetamine and not Mr Dao’s. Plainly the jury regarded Mr Dao as being involved in a joint enterprise importing and selling methamphetamine. It therefore follows that it regarded the methamphetamine found as being the result of the February importation and therefore in joint possession of both Messrs Dao and Chea.
[45]Ruling 3, above n 14, at [13].
In any event, each amount found was above the amount needed for the presumption for supply to apply. So long as the jury was satisfied that Mr Dao possessed one of the amounts of methamphetamine found, as must have been the case, a guilty verdict for a possession for supply charge was inevitable.
(b)Supply
Mr Tennet also submits the representative supply charge could have been split according to the different phone numbers that linked to the text message/call data said to constitute supply. Because Mr Dao was involved in little or none of this text messaging, and because the charge was representative, there is a risk he was convicted essentially for the activities of Mr Chea. Mr Tennet submits it is impossible to say how the jury arrived at its guilty verdict for the representative charge, and the jury should have been able to consider the actions in respect of specific supply allegations as it did for each receiving charge.
Mr Tennet refers to the fact that initially there was only the one representative charge for supplying methamphetamine between the period of October 2013 and March 2014. However, as the trial unfolded, a substantial focus arose in respect of the supply of an ounce in Tawa on 21 February 2014.[46] Dobson J was satisfied that it was inappropriate to leave that one particular instance rolled up with other potential instances of supply in a representative charge over a longer period. The supply charges were thus recast so as to exclude the alleged Tawa supply of an ounce and to add an additional charge specific to that allegation. Mr Tennet emphasises Mr Dao (as well as Mr Chea) was found guilty of the representative supply count but not the specific supply count relating to the Tawa incident.
[46]Mentioned in a text message sent by Mr Chea to Mr Dao asking him to “bring 1 egg to meet me in Tawa”.
The use of a representative charge is consistent with this Court’s guidance in Dryden, in that the facts disclosed a continuing course of conduct without being able to give particularity to discrete instances of offending.[47] Mr Dao was not prejudiced in his defence through the use of the representative charge. His defence was the same to all possible instances: he was not involved in any supply. It was open to the jury to find evidence of supply from the fact that the methamphetamine imported must have been distributed before February 2014 and the indicia of supply were found in the Chews Lane apartment and the Renault car. It cannot therefore be said that a failure to split the charges further has given rise to a miscarriage of justice. This ground of appeal fails.
Sufficiency of evidence on receiving charges
[47]Drydenv R, above n 36, at [21].
Mr Tennet submits that there was insufficient evidence to convict Mr Dao on the four receiving charges.[48] He argues the jury could not be satisfied Mr Dao either knew the property was stolen or was reckless as to whether it could have been. The fact that Mr Dao acknowledges, with the benefit of hindsight, that the items might have been stolen, was only one factor that could go towards recklessness. Further, there is a lack of text message data relevant to the receiving charges, and none which pointed towards any guilty knowledge on his part. The evidence was that Mr Dao was someone who fixed computers and other electronics and therefore it was quite reasonable for him to be in possession of such items. It is submitted that the lack of evidence indicates that it was not open to the jury to find that Mr Dao had been reckless as to whether or not the property was stolen.
[48]Although Mr Dao was also acquitted of one receiving charge, there is no challenge to the convictions on the basis of inconsistent verdicts.
The main issue at trial was Mr Dao’s knowledge. The Crown had established that these items had been stolen and that Mr Dao was aware of their presence in the apartment. The stolen iPad was found in Mr Dao’s room and the three stolen laptops were in the living room. Mr Dao said he was aware of the three used laptops found in the drawer in the living room. Mr Dao acknowledged he was aware that Mr Chea would sometimes receive items and ask Mr Dao to look at them. He told the police that if he suspected it was stolen (for example, an iPhone that was locked by its owner) then he would tell Mr Chea and give it back to him. He acknowledged that Mr Chea had asked him on occasion to clean and re-install software on computers, but made no admission to having done so in relation to the three stolen laptops here.
The Crown case was that Mr Chea would trade drugs for stolen items and that it was Mr Dao’s role to update or fix the computers as required. The jury was clearly satisfied that both Messrs Chea and Dao were jointly involved in the importation and distribution of methamphetamine and the shared apartment was used for this purpose. It was therefore open to the jury to conclude that Mr Dao had received this computer equipment from Mr Chea, who had received these items as payment for drug supplies, to fix or update them as he had done previously. Given Mr Dao admitted he knew Mr Chea had in the past dealt with stolen property, the jury was entitled to conclude that Mr Dao knew, or was at least reckless about whether the items were stolen.
We are satisfied there was sufficient evidence to support the guilty verdicts on the charges of receiving stolen property. This ground of appeal fails.
Admissibility of expert evidence
Mr Tennet challenges the admissibility of the expert evidence of DSS Leitch, the head of the Covert Operations Unit for the Wellington Police, who was, Mr Tennet submitted, the “officer in charge of the investigation”. He spoke to the media when the warrants were executed in March 2014. He also gave expert evidence on the use by methamphetamine dealers of codes in their communications with one another and with potential purchasers of methamphetamine. Mr Tennet submits DSS Leitch was “too close to the action”, and was effectively able to give an opinion affirming the correctness of the charges laid as a result of the operation he directed. For this reason, Mr Dao argues the evidence of DSS Leitch ought to have been ruled inadmissible.
The opinion of an expert witness that is part of expert evidence offered in a proceeding is admissible if the fact-finder is likely to obtain substantial help from the opinion in understanding other evidence in the proceeding or ascertaining any fact that is of consequence to the determination of the proceeding.[49] An expert is a person who has specialised knowledge or skill based on training, study or experience.[50] There is nothing to suggest that DSS Leitch, as head of the Covert Operations Unit, is not qualified as an expert on drug crimes, as the Judge so found.
[49]Evidence Act 2006, s 25(1).
[50]Section 4(1).
In terms of admissibility, this Court in R v Jones rejected an argument that the officer in charge of the investigation could not give evidence as an expert witness.[51] A witness of fact can also be an expert witness.[52] Provided that opinion evidence is described as such and follows a proper qualification by the witness of the expertise necessary to express such an opinion, there can be no objection to police officers who are witnesses on matters of fact also giving expert evidence. The weight that is given to such evidence is a matter for the jury.
[51]R v Jones [2007] NZCA 187 at [19].
[52]R v Williams CA63/05, 9 December 2005 at [117]–[120].
At trial, counsel for Mr Dao made two challenges to the admissibility.[53] In the second, Mr Tennet ran an argument similar to that raised on appeal, focusing on DSS Leitch’s involvement in fronting the media. Permission to recall him was granted.[54] DSS Leitch rejected suggestions that he deliberately distanced himself from his involvement in the investigation, and in re-examination confirmed that his involvement in this particular case did not affect the expert evidence that he gave.
[53]Both challenges were rejected by Dobson J. The first challenge was that defence counsel had no notice of the nature of DSS Leitch’s experience he was likely to draw on and no means of testing the validity of the opinions he was to express: R v Chea HC Wellington CRI-2014-085-2491, 16 June 2015 [Ruling 1]. The second challenge was an application to recall DSS Leitch and cross-examine him regarding his involvement with the media regarding this case: R v Chea HC Wellington CRI-2014-085-2491, 19 June 2015 [Ruling 2].
[54]Ruling 2, above n 53, at [4].
On appeal, Mr Tennet submits DSS Leitch was unable to give impartial expert evidence because he was involved in the investigation and spoke to the media about it. This case is said to be distinguishable from R v Jones because there the evidence was far more limited and trial counsel did not object to the evidence. Here the involvement of the witness is said to be much more substantial. However, it is difficult to see how the proximity of DSS Leitch can be greater than that of an officer in charge of the investigation. DSS Leitch was not in charge of the investigation and was not involved in day-to-day decision-making. While he was kept informed of its progress from an early stage and was satisfied that the investigation should go ahead, this was not the only investigation or team that was reporting to him. His role in fronting the media was routine, given the fact he is head of the Covert Operations Unit and this offending drew considerable media interest given its location.
Importantly, there is no real challenge to the content of DSS Leitch’s evidence, which largely related to drug terminology, practices in methamphetamine dealings and opinion evidence on what the text messages between the appellants and others meant. Although it was put to DSS Leitch in cross-examination that he had tailored his evidence to help the prosecution, such a proposition was entirely rejected. He also affirmed that his expert evidence was based on his experience as a whole, and not because of his involvement in this particular case. We are therefore satisfied that nothing has been raised to suggest that the evidence given was not objective or impartial. DSS Leitch’s evidence was rightly admitted. This ground of appeal fails.
Failure to put Mr Dao’s defence
Mr Tennet submits that the defence case for Mr Dao was not adequately put by the Judge in the following respects:
(a)Mr Dao’s case was not put separately from Mr Chea’s in relation to the importation counts, effectively tying the defences together rather than putting Mr Dao’s defence separately.
(b)In relation to the supply charges, the Judge did not set out the defence’s response to the Crown’s proposition that “Mr Dao was sufficiently involved to be guilty on these charges”.
(c)The Judge effectively wrote off defence counsel’s criticism of the financial analyst and the possible double-counting of money being transferred between Messrs Dao and Chea.
(d)In relation to the receiving charges, the Judge did not deal with the defence submission that he had to be reckless at the time of receiving.
It is well established that it is the duty of the trial Judge to identify and adequately remind the jury of the defence case in relation to each defendant.[55] The precise wording required in a summing-up is very much fact-dependent. Whilst the Judge is required to see the nature of the defence is put to the jury, the Judge is not required to repeat defence counsel’s arguments or “top up” a weak defence case.[56]
[55]R v Shipton [2007] 2 NZLR 218 (CA) at [33].
[56]R v Shipton, above n 55, at [37].
We are satisfied Dobson J correctly identified and adequately put Mr Dao’s defence to the jury in each respect challenged. In relation to the importation charges, although the Judge initially dealt with Messrs Dao and Chea’s defence case together, this was because their initial defence was the same: that there was no proof that it was methamphetamine in the packages imported into New Zealand. It made sense to put them together and did not detract from the second part of Mr Dao’s defence: that Mr Dao was an unthinking underling and merely carried out Mr Chea’s instructions without knowing what was going on. We consider that the Judge made no error by dealing first, and together, with points common to both Mr Chea and Mr Dao and then highlighting the areas where the defence cases diverged. On the importation charges we are satisfied the Judge summarised fairly, and put adequately, all aspects of Mr Dao’s defence.
In respect of the representative charge of supply, Mr Tennet submits the Judge did not explain the defence response when he referred to the Crown case as being that “Mr Dao was sufficiently involved to also be guilty on these charges”. We are satisfied it was not necessary to do so. The Judge had already earlier summarised Mr Dao’s defence to the supply charges, the essence of which was that the text messages do not prove a supply occurred. The point of the quoted sentence was merely to state the Crown’s contention that Mr Dao was involved in the supply even though most of the text evidence showed that Mr Chea was in charge. The fact that the Judge did not then repeat defence counsel’s submission does not mean Mr Dao’s defence was not before the jury. The Judge also reiterated that the jury could come to their own conclusions on the text messages.
We also reject Mr Tennet’s submission that the Judge effectively wrote off the claim of double-counting by the financial analyst. The Judge summarised Mr Tennet’s submission raising a concern about double-counting, and noted the Crown’s acceptance as to the limitations of the evidence. The Judge suggested the jury might not be minded to spend significant amounts of time going through the data, beyond assessing whether it did support the Crown proposition in relation to unexplained money going into their accounts and being transferred overseas. This approach did not write off Mr Tennet’s submission. It merely focused the jury’s attention on what was the key point of the financial analyst’s evidence.
Finally, in relation to the receiving charge, the Judge reiterated the defence submission that Mr Dao had to be shown to know or be reckless as to whether, the property was stolen at the time of receiving. The Judge stated Mr Dao’s defence was that the Crown could not prove the state of mind needed for Mr Dao to be guilty and it is not enough for the Crown to treat Mr Dao as having been reckless at a later point in time. Further, the question trail clearly identified the factual issue for decision that the jury must be satisfied that when Mr Dao received the item he knew or was reckless as to whether it was stolen. We are satisfied that the defence submission that hindsight cannot be equated with recklessness at the time of receiving was properly before the jury. This ground of appeal also fails.
Misdirections as to the use of the evidence
Two aspects are raised. Mr Tennet submits there were inadequate directions as to the use the jury could make of the expert evidence and the text message data. In relation to the expert evidence, he submits that there ought to have been an additional reference to the fact DSS Leitch’s impartiality and credibility was “strongly challenged” and a direction about the weight and importance to give to the opinions expressed by the witnesses. In relation to the text message data, Mr Tennet submits the Judge needed to direct the jury what it should be looking at in terms of each particular charge. The texts were divided up into those that related to each charge but the jury was not recalled for the Judge to recount that list to the jury. Mr Tennet submits that this would have bolstered Mr Dao’s defence that there was inadequate evidence to convict him of supplying methamphetamine.
(a)Expert evidence
The Judge gave a direction on how the expert evidence should be used. He set out the defence criticisms of the impartiality and credibility of DSS Leitch and then repeated the challenge to his objectivity when directing the jury on the use of expert evidence. The first direction given could not have been clearer:[57]
Both Chea and Dao have strongly challenged the impartiality and the objectivity of Detective Leitch, criticising him for assuming he could be an objective expert when they allege he had a compelling interest in getting convictions of those caught as a result of the search in the Chews Lane apartment. They cast further doubt on his integrity because he did not volunteer in his evidence that he had fronted media interviews about the execution of the search warrant, and I allowed the request for Detective Leitch to be recalled on that and you will form your own views I’m sure on his response and on his evidence overall.
[57]R v Chea HC Wellington CRI-2014-085-2491, 22 June 2015 [Summing-up] at [59].
Later, Dobson J gave a direction to the effect that it is not “trial by expert”. Although the direction is not particularly detailed, it covered the essential points: that the jury is not required to accept anything they have heard in the witness box by way of expert evidence, and it was entirely for the jury whether it accepted the evidence of DSS Leitch. There was no need to repeat in full the earlier direction as to the challenge to impartiality and objectivity. We are satisfied the directions of Dobson J in relation to expert evidence were adequate and did not give rise to a miscarriage of justice.
(b) Text messages
In respect of the text message data, there was no misdirection. The jury had the timeline that set out the relevant text messages. The text message data was only part of the evidence relied on by the Crown in relation to the supply charges. The evidence of what was found in the apartment and car was also extremely important circumstantial evidence of a supply. The fact the jury was not recalled and directed on the claimed limited involvement of Mr Dao in the text messages cannot be regarded as a misdirection. It gave rise to no miscarriage of justice. This ground of appeal therefore fails.
Misdirection on reasonable doubt
Mr Tennet submits there was misdirection by the Judge on reasonable doubt. He accepts Dobson J based his direction on “reasonable doubt” on the observation in R v Wanhalla, but failed to give the full direction.[58] Although the Judge referred back to what counsel had said in summing up, Mr Tennet submits it was insufficient merely to allude to what counsel said. This is especially so on such a critical aspect of the criminal law. Mr Tennet submits that, because Mr Dao could give an innocent explanation for all his actions, the Crown needed to prove all elements of the charges beyond reasonable doubt. The failure to give a full direction constituted a substantial misdirection.
[58]R v Wanhalla, above n 40.
We see no merit in this point. Whilst it would have been ideal for Dobson J to give the full Wanhalla direction, no miscarriage of justice arises from the failure to do so. What the Judge said, following his summary of the presumption of innocence, was this:[59]
The standard of proof the Crown must discharge is one beyond reasonable doubt. Counsel paraphrased it adequately, and I think probably Mr Tennet has written down notes on a previous occasion when we've been in the same room, the formula of words that I use. It is beyond reasonable doubt — it means what it says. It recognises it's virtually impossible to prove a reconstruction of past events to an absolute certainty. So a reasonable doubt is what the law says is an honest and reasonable uncertainty left in your mind about the guilt of a defendant after you have given careful and impartial consideration to all of the evidence that you have heard that is relevant to that particular charge. So the Crown must take you to that point of being beyond a reasonable doubt.
[59]Summing-up, above n 57, at [99].
The reference to Mr Tennet’s “written down notes” was to the document from which Mr Tennet read to the jury in his closing address. He accepted this was the full Wanhalla direction. That said, we do not consider it is good practice for a Judge to refer back to what counsel had said when addressing the jury. This is particularly so, given the central importance to the summing-up of a full and nuanced direction by the Judge.
In R v Peato, this Court noted the salient features of the Wanhalla direction as being: the rationale for the burden of proof, namely the presumption of innocence; the fact it is not enough for the Crown to convince of probable guilt; and the description of what a reasonable doubt is.[60] Dobson J sufficiently covered all these points. His direction would have left the jury in no doubt about the standard it was to apply and what a reasonable doubt entails. There was no misdirection on the topic of the meaning of reasonable doubt. This ground of appeal therefore fails.
Misdirection on the elements of importation
[60]R v Peato [2009] NZCA 333 at [54].
Finally, Mr Tennet submits the jury was misdirected on the elements of importing. In the question trail, the definition of “import” was set out as follows:
The act of importing involves arranging for goods to be sent to New Zealand. It extends until the goods reach the delivery address specified when they were dispatched. In this case, it extends until the goods were delivered either at that New Zealand address, or at an alternative point in response to a request to vary the point of delivery made by or on behalf of the person or persons who had stipulated the original delivery address. Where more than one defendant is jointly charged with importing, it is not necessary for the Crown to prove that all of those jointly charged were involved in all stages of the importation. Each defendant has to intentionally take some material part in the importation knowing that that is what they were doing.
Arising from this definition, the jury asked whether “material part”, requires physical handling of the package. The Judge responded that no physical contact was necessary but the accused “must know they are contributing and their contribution must be material, but it does not necessarily have to be physically handling the package”. Mr Tennet submits this definition does not clarify when importing is complete. Applying R v Hancox, he submits that when importation is complete needed to be spelt out, because acts within New Zealand do not leave persons liable to importation unless they are a party to the preceding importation from abroad.[61] In respect of the February 2014 package, Mr Tennet submitted that this importation was complete when the delivery was re-routed and at the Kaiwharawhara CourierPost depot when Mr Dao called to collect it. Thus the jury needed to be told that any actions at that stage were not part of the importation, because importation was complete.
[61]R v Hancox [1989] 3 NZLR 60 (CA) at 63.
Mr Tennet also submits the use of the word “goods” in the definition of import was in error and should have said “controlled drug”, because that is what the jury needed to be sure was imported for the appellants to be guilty.
We are satisfied that the jury was not misdirected on the elements of importing. In both the summing-up and the question trail, the Judge clearly and correctly stated the three elements the jury needed to find were proved beyond reasonable doubt: that Mr Dao imported a controlled drug, that he knew it was a controlled drug, and intended to import that controlled drug. The definition of import, including when importation is complete, was set out in full in the question trail. Trial counsel took no issue at the time about the correctness of that definition. When directing the jury that “material part” did not require physical handling of the package, the Judge referred back to the definition of importation in the question trail, which explicitly stated when the act of importation is complete. In this context, it would have been clear to the jury that the “material part” played by each defendant needed to occur during the period of importation as defined.
It was entirely open to the jury to be satisfied that Mr Dao played a “material part” in the importation, regardless of whether the importation was technically complete at the time Mr Dao collected the package from the CourierPost depot. In relation to the “material part” played by Mr Dao, the timing in relation to when importation was complete was not particularly relevant. The Crown case was that Mr Dao was the one directing when the packages were to be shipped through his money transfers and calls to overseas numbers. The jury could therefore be satisfied he played a material role in the importation right from the start.
Finally, the fact that the word “goods” instead of “controlled drugs” was used is not significant. In the question trail, the word “import” (with direction to look at the definition given) was immediately followed by the words “controlled drug”. The question asked “Did Mr Dao, with one or more others, import a controlled drug into New Zealand …?” It would have been abundantly clear to the jury that what needed to be imported (if the appellants’ actions met the definition) was controlled drugs. There was no misdirection as to the elements of importation.
Result
The result is that all grounds of the conviction appeal fail. Mr Dao’s appeal against conviction is therefore dismissed.
Conviction appeal by Mr Debreceny
Mr Debreceny brought his appeal out of time. Given that the Crown has not been prejudiced by the delay due to the related appeals of Messrs Chea and Dao, an extension of time within which to bring his appeal is granted.
Mr Debreceny raises the following grounds on this conviction appeal:
(a)There was no evidence that Mr Debreceny took any role in the importation process and there was insufficient evidence of the contents of the packages, meaning a high degree of speculation was involved when the jury found Mr Debreceny guilty of importing methamphetamine in October 2013.
(b)The verdicts on the importation charges were inconsistent, with a guilty verdict for one importation charge but not guilty verdicts for the other two, rendering the conviction unsafe.
(c)There was a failure to put the defence case adequately, including a failure to direct the jury on what they should be looking at in terms of each particular charge rather than merely putting the competing case.
(d)There was a substantial misdirection on the requirements of reasonable doubt due to a failure to give the full direction from Wanhalla.
(e)There was a substantial misdirection as to the elements of importing, particularly in regards to the degree of involvement.
There is no need to discuss grounds (d) and (e). These were also raised by Mr Dao and the issues have been fully addressed and both grounds rejected.[62] The remaining grounds can be dealt with relatively briefly.
Insufficiency of evidence
[62]At [69]–[72] for the Wanhalla direction and [73]–[78] for the elements of importing.
Mr Debreceny faced three charges of importing methamphetamine relating to the packages that entered New Zealand in July 2013, October 2013 and February 2014. He was found guilty only in respect of the October 2013 importation. For Mr Debreceny, Mr Jefferies submits that this conviction is unreasonable having regard to the evidence, as there was no evidence that Mr Debreceny took an overt role in the importation process. Counsel contends there was a lack of evidence as to the contents of the packages and no evidence that Mr Debreceny knew what was in the packages in any event. As such, the jury could only speculate, rather than rely on evidence of proper probative value, in convicting Mr Debreceny.
The Crown case alleged Mr Debreceny was part of the joint enterprise for the importation of methamphetamine. We have already referred in summary to some aspects of Mr Debreceny’s participation.[63] The evidence of Mr Debreceny’s participation in the joint enterprise with Messrs Chea and Dao dates back to the alleged July 2013 importation. The fact all were acquitted does not alter the fact of such joint involvement with each other and the relevance of Mr Debreceny’s contacts with Mr Dao at that time. The totality of evidence suggests Mr Debreceny had a great deal of contact with Messrs Chea and Dao. Some of this extended beyond the mere delivery of the packages. A brief history of this contact is set out below.
[63]At [17] above.
On 23 July 2013, Mr Aman Hussain, a courier driver known to Mr Debreceny, attempted to deliver the July package to an abandoned property in Priscilla Crescent. A collection card was left in the mailbox. The next day Mr Debreceny called Mr Hussain, speaking to him for about five minutes. Mr Dao had contacted Mr Debreceny an hour prior and, in a series of text messages, arranged to meet up with him. On 25 July 2013 Mr Dao sent a text to Mr Debreceny stating “They delivery yesterday afternoon. And a collection card was left there”. A second text stated “Do you think we need to call post office and set up another delivery”. The response from Mr Debreceny was “Just wait”. Some 15 minutes later Mr Hussain telephoned Mr Debreceny. A minute later Mr Debreceny sent a text to Mr Dao “My mate has it”. Two hours later the package was delivered to Mr Debreceny at his home address in Pierce Street. Mr Collier-Repia, a trainee courier driver with Mr Hussain, gave evidence that this was quite unorthodox.
In the period of late July through until early September 2013 there was further contact between Messrs Debreceny and Dao. On 26 September 2013 the second package, labelled as containing “green jade and jeans”, arrived at the International Mail Centre in Auckland. There was immediate contact between Mr Dao and a person in Canada, and between Messrs Chea and Debreceny. On 28 September there was a call from Mr Debreceny to Mr Hussain, and further contact on 30 September. That day Mr Debreceny also received a text from Mr Dao asking him to help buy methanol. A plausible inference is that the parties were getting organised ahead of the arrival of the package.
Immediately after the Customs duty was paid on 21 October, Mr Debreceny contacted Mr Hussain and spoke to him for over two minutes. There followed contact between Messrs Dao, Debreceny and Chea regarding the whereabouts of the package. The next morning Mr Dao spoke to Mr Debreceny and within five minutes of the call the package was delivered to Mr Debreceny at Pierce Street by Mr Collier‑Repia.[64] Two minutes after Mr Debreceny received the package he attempted to phone Mr Dao, and they later exchanged text messages and spoke. Mr Dao followed up on that contact with Mr Debreceny to a person in Toronto and for the remainder of that day there was a large amount of contact between Messrs Dao, Debreceny and Chea. This suggests significant action followed the delivery of the second package in Wellington.
[64]Mr Hussain had since stopped delivering packages to the area in which Mr Debreceny’s house was located, but had told Mr Collier-Repia that a package was coming for Mr Debreceny and to make sure he took it to him.
On 28 October Mr Chea text Mr Dao “Kien come to mike house to pick up green pur(-)e”[sic]. Mr Dao responded “Ok”. This suggests the second package had remained with Mr Debreceny for around five days since he received it on 21 October. Given the approximate value of the contents was around $1 million, it is highly unlikely that Messrs Chea and Dao would have left the package with an outsider for so long.
There was ongoing contact between Messrs Chea, Dao and Debreceny before they all met at Tory Street on 30 October. From 7 November there was a series of contact between “B” in Vietnam and Messrs Dao, Debreceny and Chea, in which “B” told Mr Chea to take the money to Mike (Mr Debreceny). There is further discussion between “B” and Mr Dao about Mr Debreceny being involved in the transfer of money. On 8 November there was a one-minute phone call between “B” and Mr Debreceny. The clear implication from this and other contacts was that Mr Debreceny had some involvement in the money side of the enterprise. Shortly after that Messrs Dao and Debreceny went to Vietnam to attend a wedding, with Mr Dao taking Mr Debreceny to a family dinner.
Finally, on 13 December, Mr Chea text Mr Debreceny asking if he could come to Tory Street with some “A”, to which Mr Debreceny responded “See you in 15”. A similar conversation was repeated on 14 December. Mr Debreceny said in evidence that “A” related to a car but the available inference is that it relates to acetone.
Against the weight of this evidence were the claims of Mr Debreceny that he did not know what was in the packages. At trial, Mr Debreceny gave evidence that he knew Messrs Chea and Dao through his car repair business, and that all contact between them was related to this. He claimed that he often has customers using him as a delivery address, and that such packages generally related to car parts. On this instance, he gave evidence that he had no knowledge of what was in the packages and had no involvement in the initial importation of the packages. Given the advantages the jury had in assessing the credibility of Mr Debreceny’s evidence, it was open to it to reject entirely his explanation for his involvement.
We are satisfied that the evidence above described clearly supported the involvement of Mr Debreceny not only in a joint enterprise but specifically in the October importation for which he was convicted. From the evidence regarding Mr Debreceny’s conduct before, during and after the October 2013 importation, we consider it was open to the jury to find that Mr Debreceny was fully aware that methamphetamine was inside the package and that he participated knowingly in the importation process. There was ample evidence available to the jury to find that charge against him proved beyond reasonable doubt. The ground of appeal based on an insufficiency of evidence therefore fails.
Inconsistent verdicts
Mr Jefferies also submits that the conviction for the October 2013 importation was inconsistent with Mr Debreceny’s acquittals in respect of the alleged July 2013 and February 2014 importations. He submits that the jury’s verdict is therefore unreasonable based on this inconsistency.
The ground that the jury’s guilty verdict was unreasonable due to inconsistency requires an analysis of whether there is a logical and rational explanation for the conviction. The same reasoning exists as applied to the acquittals of Messrs Chea and Dao in relation to the July 2013 package.[65] For Mr Debreceny to be guilty of importing, it still needed to be established that it was methamphetamine that was in the package. The jury was clearly left with some doubt that it was methamphetamine in the July package because the strength of the evidence was significantly less than it was for the October 2013 importation. For the later importation, the jury could rely on the Customs documentation which stated the package contained “green jade and jeans” as well as the evidence Messrs Chea and Dao had been supplying methamphetamine after the October 2013 package had arrived. The evidence from which an inference (that it was methamphetamine in the packages) could be drawn was therefore much stronger for the October 2013 import than the July 2013 one, providing a logical and reasonable explanation for the jury’s different verdicts.
[65]See the discussion at [22]–[25] above.
Further, the evidence of Mr Debreceny’s involvement for the October and February packages is quite different. He was directly involved in receiving the October 2013 package, contacting the courier and having the package delivered to his house. It was Mr Dao who received the February 2014 package. It was open to the jury to conclude the different factual situation gave rise to a reasonable doubt that Mr Debreceny had played a “material part” in the February importation.
There is thus a logical explanation for the different verdicts. It was reasonable for the jury to be sure that (a) methamphetamine was imported and (b) that Mr Debreceny played a material role in the importation in respect of the October 2013 package, but not in respect of the other two. The conviction cannot therefore be seen as unreasonable. This ground of appeal fails.
Failure to put Mr Debreceny’s defence
Mr Jefferies submits that there were misdirections by the Judge in terms of the evidence and the weight that could be placed on it, as well as an overall failure to put the defence case adequately. He submits the Judge needed to direct the jury what it should be looking at in terms of each particular charge, and not merely to put the competing cases, in particular the lack of communication with the country of origin of the packages.
There is little merit in this challenge. In summing up, Dobson J first went through the question trail and dealt with the elements of importing. It was clearly stated that the jury must go through the sequences of questions in relation to importation for each of the three alleged imports specifically in relation to Mr Debreceny and his involvement. The Judge therefore clearly did direct the jury as to what it needed to be looking at in terms of each charge.
In terms of putting Mr Debreceny’s case to the jury, Dobson J observed that Mr Jefferies adopted the criticisms of other counsel in suggesting that the circumstances of the imports did not prove that methamphetamine had been imported. The Judge also put Mr Debreceny’s separate defence to the jury, that his connection with Messrs Chea and Dao is because of their frequent need for car repairs, and highlighted the submissions of Mr Jefferies that the case against Mr Debreceny was weak and speculative, with no real evidence of Mr Debreceny’s involvement with the product after importation. Such a summary fully encapsulates Mr Debreceny’s defence.
In respect of the expert evidence and the weight that could be placed on it, Dobson J stated the fact that the jury is not committed to accepting anything it has heard in the witness box by way of expert evidence.[66] In terms of DSS Leitch’s evidence, the Judge specifically mentioned that he was challenged as to the objectivity of the opinion he offered and it was for the jury to assess whether it accepted his evidence. He noted there was no obligation on the jury to do so. The essence of the Judge’s summing-up and directions was to place a caveat on the use that can be made of the expert evidence. No real challenge to this can be established. This ground of appeal also fails.
Result
[66]See [66]–[67] above.
As all grounds of appeal have failed, Mr Debreceny’s appeal against conviction is dismissed.
The sentence appeals
Following convictions of the appellants, Dobson J asked the Crown to file a memorandum setting out its contentions as to the amount of methamphetamine that had been imported, the amount it contended had been supplied, and the amount attributable to each appellant convicted of possession for supply. Defence counsel also provided memoranda responding to the Crown’s contentions as to quantity. Following consideration of this material the Judge concluded he was satisfied that the amount of methamphetamine in each of the imported consignments was not less than one kg. In terms of possession for supply, the Judge was satisfied Mr Chea, being in charge of the operation, possessed all the methamphetamine found, bar that located in Ms Cummins’ make-up case. This amounted to possession of 1.170 kg of methamphetamine. Mr Dao was also regarded as being in possession of nearly all the methamphetamine found, bar that in Ms Cummins’ bag and Mr Chea’s bedroom, amounting to 1.169 kg.
Arising from the facts of the offending, the roles played by each of the participants,[67] and the amount of methamphetamine involved, Dobson J imposed the following sentences:
(a)Mr Chea was sentenced to 17 years on the lead offences of importing methamphetamine in October 2013 and February 2014.[68] Applying R v Fatu, the offending fell within band four, attracting a starting point between 12 years and life imprisonment.[69] Given that the total amounts imported were double the weight at the bottom of band four, a starting point upwards of 12 years was required. The Judge fixed a starting point of 14 years for the first importation and added a further two years for the second. The charge of possession for supply was treated as a factor reflecting the seriousness of the two importation convictions. A further uplift of one year for the representative supply charges was then added. No mitigating factors were identified. This resulted in a total sentence of 17 years’ imprisonment. The Judge imposed concurrent sentences of 12 years’ imprisonment for possession for supply and nine years for the representative charge of supplying methamphetamine between October 2013 and March 2014.[70] A minimum period of imprisonment (MPI) of 50 per cent of the lead sentences was imposed.
(b)Mr Dao was sentenced to 15 years’ imprisonment for importing methamphetamine in October 2013 and February 2014. The Judge considered the difference in culpability between Mr Dao and Mr Chea and adjusted Mr Dao’s starting point accordingly, adopting a starting point of 14 and a half years on the two importing charges. A six‑month uplift to reflect the representative supply charges was added. No mitigating features were identified. This resulted in a total sentence of 15 years’ imprisonment. The Judge imposed concurrent sentences of 12 years’ imprisonment for possession for supply and eight and a half years for the representative charge of supplying methamphetamine. An MPI of 50 per cent was also imposed.
(c)Mr Debreceny was sentenced to nine and a half years’ imprisonment for the one charge of importing methamphetamine in October 2013. Whilst Dobson J concluded that the weight was double that of band four from Fatu, he nevertheless extended leniency to Mr Debreceny for his role in the joint enterprise. He considered Mr Debreceny’s culpability to be lower; his involvement was “foolish” and there was no demonstrable financial gain.[71] Thus a starting point of nine and a half years, below what would otherwise have been appropriate in light of the application of band four of Fatu, was adopted. No mitigating factors were identified. Thus Mr Debreceny was sentenced to a term of imprisonment of nine and a half years.
Mr Chea
[67]Summarised at [8]–[9] above.
[68]Reflecting the uplifts for the other offending as all sentences were to be served concurrently.
[69]R v Fatu [2006] 2 NZLR 72 (CA).
[70]Concurrent sentences of one year and three months’ imprisonment were imposed for the receiving convictions.
[71]Sentencing notes, above n 3, at [40].
On appeal, Mr Rickard-Simms submits that the flow-on effect of using a representative charge for all methamphetamine located created a difficulty at sentencing. Dobson J was required to make a finding of fact in relation to each appellant and of how much they had knowledge and possession. This resulted in a significantly increased sentence for Mr Chea than would have applied if the jury had been able to differentiate between the amounts for which each was responsible. Mr Rickard-Simms also submits the Judge erred in declining to give any credit for the eighteen months Mr Chea spent on electronically monitored (EM) bail.
Under s 24(1) of the Sentencing Act 2002, the court may accept as proved any fact that was disclosed by the evidence at the trial, and must accept as proved all facts, express or implied, that are essential to a finding of guilt. Where a fact relevant to the determination of a sentence is asserted by one party and disputed by the other, the prosecutor must prove beyond reasonable doubt the existence of a disputed aggravating fact.[72]
[72]Sentencing Act 2002, s 24(2).
Dobson J called for submissions from both sides in respect of the amounts of methamphetamine involved. Mr Chea was not denied any due process. The Judge carefully assessed Mr Chea’s culpability for the offending. Given the jury’s finding as to Mr Chea’s role in the importation, it was entirely open to the Judge to regard him as the “boss” of the operation and being in possession of almost all the methamphetamine found. Although over one kg was found in Mr Dao’s car, the joint enterprise nature of the operation gave rise to a clear inference that this was methamphetamine in Mr Chea’s possession also. We find no error in the Judge’s determination of the amount of methamphetamine in Mr Chea’s possession.
In any event, the lead charges were the importation charges. Sixteen years’ imprisonment was the combined starting point for these charges. The possession for supply was treated as an aggravating feature. It cannot be said that, even if Dobson J was in error regarding the amount of methamphetamine in Mr Chea’s possession, a “significantly increased sentence” has resulted.
We accept Mr Rickard-Simms’ submission, however, that time spent on EM bail is a mitigating factor that the Judge must take into account to the extent that it is applicable.[73] In taking this into account, the court must consider the period of time spent on bail, the relative restrictiveness of the condition, the offender’s compliance with the bail conditions, and any other relevant matter.[74] It seems the Judge was aware Mr Chea spent time awaiting trial “on restricted bail” although no reference was made to the amount of time involved or the detail of the conditions.[75] Dobson J stated “in a case of this type and the circumstances on which you were bailed, I am not prepared to give you a credit for that”.[76]
[73]Sentencing Act, s 9(2)(h).
[74]Section 9(3A).
[75]Sentencing notes, above n 3, at [47].
[76]Ibid.
We were informed Mr Chea spent 13 months on bail with an EM condition and there was full compliance with all bail conditions. It is unclear whether the Judge was aware of this information. We accept that a period of 13 months on restrictive bail conditions including an EM condition could justify a modest reduction in the sentence.[77]
[77]See R v Cristia [2008] NZCA 19 at [14] and Dugdale v R [2014] NZCA 248.
There is no rule as to how much discount (if any) should be given. The level of discount is left to the Judge’s discretion. No arithmetical formula should be applied.[78] On occasions Judges will provide for some modest discount for this factor.[79]
[78]See R v Faisandier CA185/00, 12 October 200 at [28]; R v Tamou [2008] NZCA 88 at [19]; Baillie v R [2010] NZCA 507 at [18]; and Keown v R [2010] NZCA 492 at [12].
The difficulty in the present case is that the Judge’s reasons for declining to make an allowance are brief. If anything they suggest the Judge may not have been aware of the restrictive nature of the bail terms and the length of time on EM bail. We are satisfied the circumstances are such that a modest allowance ought to have been made. To make no allowance was an error. We consider a discount of four months’ imprisonment is appropriate. Although this is a small change to the ultimate sentence, we consider it is necessary to allow the appeal, given that there was an identifiable error by the Judge.
We therefore allow Mr Chea’s appeal against sentence. The sentences imposed in the High Court on the lead offences of importing methamphetamine are quashed. In their place, sentences on the lead offences of 16 years and eight months’ imprisonment are substituted. The minimum period of imprisonment of 50 per cent remains in place. All other sentences imposed are confirmed, including their concurrent nature.
Mr Dao
Mr Tennet submits for Mr Dao that the starting point was manifestly excessive either in its own regard or in comparison with other cases, as was the end point. There was inadequate differentiation between Messrs Dao and Chea, such that the Judge failed to recognise the role played by Mr Dao. Further, Mr Tennet submits that the Judge erred in determining the weight of the importations and apportioning the amount of methamphetamine in the possession of, and the amount supplied by, Mr Dao. It was not open to the Judge to conclude the October 2013 import was one kg, and the appellants should have been given the benefit of the doubt, and there was no evidence on which to base the purity of this import, which is an important factor. In combination these errors led to a manifestly excessive sentence.
Mr Tennet also submits Mr Dao should have been given credit for his character and personal circumstances and for time spent on restrictive bail. Finally, it is submitted that the imposition of an MPI was wrong and its length was manifestly excessive in any case.
We are satisfied Dobson J made no error in determining that the weight of both importations was more than one kg. His conclusions were supported by the amount of methamphetamine found, the similarities in the weights of the packages and manner of sending, as well as the text messages indicating consistency between the imports. It was also open to the Judge to be satisfied that the methamphetamine was of a marketable quality given the indices that the methamphetamine had been successfully distributed. Once the weight of methamphetamine was determined, the starting point adopted was well within range. Certainly the offending fell within band four of Fatu, attracting a start point of more than 12 years’ imprisonment.[80] Dobson J referred to the case of Chen v R, in which Mr Chen pleaded guilty to importing and having possession for the purposes of supply of less than one kilogram of methamphetamine.[81] A starting point of 15 years was taken for the import with a three-year uplift for additional possession for supply charges. Mr Chen was not regarded as the mastermind but nor was he at the bottom end of the chain. His position is similar to that of Mr Dao here. We consider the starting point of 14 and a half years was not manifestly excessive.
[80]R v Fatu, above n 69.
There is nothing in the point that there was insufficient differentiation between Messrs Dao and Chea. Dobson J found Mr Chea was in control of the operation and Mr Dao attracted a “somewhat lower starting point because you were not in control … [s]omebody not at the very bottom but still subject to instructions … certainly more than a foot soldier”.[82] The difference in culpability gave Mr Dao an overall sentence two years lower than Mr Chea. There was a clear differentiation by the Judge and we see no error in the determination of the respective roles and overall culpability in the joint enterprise.
[82]Sentencing notes, above n 3, at [33].
In terms of discount for previous good character and time spend on restrictive bail, Dobson J considered these mitigating factors.[83] It was within his evaluative assessment not to make any allowance for this. In terms of previous good character, whilst Mr Dao had no previous convictions, he had only been resident in New Zealand for five years and was involved in serious drug offending for at least six months. The Judge rightly regarded the seriousness of the offending as outweighing the lack of previous convictions.[84] Further, it appears that Mr Dao was not on EM bail but a curfew bail. Thus unlike Mr Chea, he was at liberty during the day. As such, it was open to the Judge to refuse a discount for this.
[83]Sentencing Act, s 9(2).
[84]In serious drug offending the personal circumstances are relegated in importance to the need to deter drug offending: R v Wallace and Christie [1999] 3 NZLR 159 at [25].
A sentence of 15 years’ imprisonment is not manifestly excessive. Nor is the imposition of an MPI of 50 per cent. This Court has recognised that in very serious drug offending it is almost inevitable that the criteria for a s 86 order will be made out, particularly the need to hold the offender accountable for the harm done to the community and the need to denounce and deter the conduct.[85] Here, the lesser culpability of Mr Dao (compared with Mr Chea) does not detract from the need to hold him accountable and denounce and deter others from committing similar offences. Thus an MPI of 50 per cent of the lead sentence is unremarkable.
[85]See R v Aram [2007] NZCA 328 at [78]; R v Zhou [2009] NZCA 365 at [19]; and Makanesi v R [2015] NZCA 134 at [10].
Mr Dao’s appeal against sentence is dismissed.
Mr Debreceny
Mr Jefferies submits that the issue in setting the sentencing level was that it was not possible for the Judge to be satisfied that the October 2013 import was one kg of methamphetamine. Mr Debreceny should have been given the benefit of the doubt. Mr Jeffries also submits that the Judge could not have been sure about the purity of the import. He submits that this led to a manifestly excessive starting point and the offending should have been placed at the lower end of band one from Fatu. Finally, Mr Debreceny should have received a discount for his commitment to rehabilitation.
We are satisfied Dobson J made no error in determining the weight of the October 2013 import to be one kg of methamphetamine. We do not repeat the reasons given earlier for upholding the Judge’s finding.[86] It was open to the Judge to be satisfied that the methamphetamine was of a marketable quality, given the indicia that in the apartment methamphetamine had been successfully distributed following the importation for which Mr Debreceny was found guilty.
[86]At [115] above.
We agree with Dobson J that a starting point below the bands in Fatu was appropriate given Mr Debreceny’s lesser involvement. Mr Jefferies submitted that the starting point should have been even lower still, but could not point to any reasons why a lower starting point should have been adopted. It is clear that Dobson J appropriately considered Mr Debreceny’s lower culpability and adopted a starting point below what would otherwise have been appropriate in light of the application of band four of Fatu.[87] There is no reason or justification for setting a lower starting point; although Mr Debreceny’s involvement was “foolish”,[88] he was still knowingly involved in the importation of not less than one kilogram of methamphetamine. Mr Debreceny’s sentence of nine and a half years’ imprisonment cannot be seen as manifestly excessive.
[87]R v Fatu, above n 69.
[88]Sentencing notes, above n 3, at [40].
In terms of credit for commitment to rehabilitation, no evidence of this has been adduced. It was not put forward at sentencing and the pre-sentence report makes no mention of this.[89] Mr Debreceny has previous convictions, which did not warrant an uplift, but meant no claim for previous good character could be made. As such, no mitigating features of the offender could be identified, and no credit from the starting point was justified. Mr Debreceny has shown no error in the Judge’s approach to sentencing.
[89]The pre-sentence report notes “Mr Debreceny has low motivation to address any programmes given his belief he is innocent”.
Mr Debreceny’s appeal against sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
- AGLC
- Chea v The Queen [2016] NZCA 207
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- [2016] NZCA 207
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