De Soto v The Queen

[2018] NZCA 366

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA215/2018
 [2018] NZCA 366

BETWEEN	MIKE DE SOTO Appellant
AND	THE QUEEN Respondent

Hearing:	23 July 2018
Court:	Gilbert, Courtney and Moore JJ
Appearances:	I M Brookie and C G Farquhar for Appellant J E L Carruthers for Respondent
Judgment:	13 September 2018 at 11.00 am

JUDGMENT OF THE COURT

A        The appeal against conviction is dismissed.
B        The appeal against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Moore J)

Introduction

1. Following a trial by jury in the District Court at Auckland Mr De Soto was found guilty of importing a class B controlled drug in the form of 100 tablets of MDMA, also known as ecstasy.[1]  Mr De Soto was convicted and sentenced by Judge M E Sharp to nine months’ home detention.[2]  Mr De Soto appeals against both conviction and sentence. 

   [1]Misuse of Drugs Act 1975, s 6(1)(a).

   [2]R v De Soto [2018] NZDC 9102.

2. The order for the drugs was placed using the internet.  The trial issues were whether the Crown could prove that Mr De Soto placed the order and, if so, whether the Crown could exclude the reasonable possibility that Mr De Soto withdrew from the transaction in sufficient time before the drugs were shipped.  Mr De Soto appeals again his conviction on the grounds the Judge made errors in directing the jury on the defence of withdrawal, both in her question trail and in her summing-up, resulting in a miscarriage of justice:  

   (a)the question trail was contrary to the “model direction” set out by the Supreme Court in Ashin v R,[3] was unclear, and unfairly favoured the Crown;

   (b)the Judge improperly and unfairly made submissions on behalf of the Crown;

   (c)the Judge made comments which undermined the defence on withdrawal, unfairly disposing the jury against him; and

   (d)the Judge’s directions regarding the reliability of the evidence of withdrawal were confusing and imprecise.

   [3]Ahsin v R [2014] NZSC 153, [2015] 1 NZLR 493.

3. Mr De Soto appeals against his sentence arguing that the Judge wrongly failed to take account of his attempt to withdraw when assessing his culpability. 

Facts

1. On 14 July 2015 a package was intercepted at the Auckland International Mail Centre.  It was found to contain 100 tablets of MDMA.  The package had been sent from The Netherlands.  It was addressed to a “Ju Ling” at an address in Grey Lynn, Auckland.  Mr De Soto lived at this address with others.  Customs Officers searched the address under warrant and seized various electronic items from Mr De Soto’s bedroom, including a laptop. 

2. The laptop was forensically examined.  This revealed an electronic conversation between a purchaser using the name “shylobuckton” and the vendor calling himself/herself “The Blacklist”.  The Blacklist used software which permitted him/her to publish websites and other services, including various black market sites, without revealing their location.  These sites are part of the “Dark Web”. 

3. Using bitcoin, shylobuckton purchased 100 tablets…