Duncan v The Queen
[2018] NZCA 108
•20 April 2018 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA378/2017 [2018] NZCA 108 |
| BETWEEN | ANDREW DUNCAN |
| AND | THE QUEEN |
| Hearing: | 8 March 2018 |
Court: | Clifford, Simon France and Whata JJ |
Counsel: | E A Hall and J R Spelman for Appellant |
Judgment: | 20 April 2018 at 4 pm |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Whata J)
Mr Duncan was found guilty of possession of a Class A controlled drug, methamphetamine, for supply. He was sentenced to three and a half years’ imprisonment.[1] This is an appeal against conviction and sentence. In relation to the conviction, the two main grounds are:
(a)the Judge failed to properly direct the jury regarding the elements of the offence that they needed to be satisfied of to establish whether the possession was “for supply”; and
(b)the Crown should not have invited the jury to conclude that Mr Martin’s evidence should be disregarded when they did not put critical criticisms to Mr Martin for comment.
[1]R v Duncan [2017] NZDC 13620.
In relation to sentence, it is submitted:
(a)the Judge erred in failing to adequately consider the impact of the purity issue on the available starting point; and
(b)the uplift for previous convictions and offending while on release conditions was too high, and there should have been a discount for mitigating factors.
Background
The background can be stated shortly. Mr Duncan was driving home when intercepted by police. A search of his vehicle located a grey bag which contained $3,000 in cash and two black boxes. Inside one of the black boxes was an electronic set of scales, a spoon, some broken glass and two plastic zip-lock bags containing crystals. In the second black box, the police located 12 empty “point bags”, 13 small plastic zip-lock bags and two glass pipes. Mr Duncan’s DNA was found on the scales and his phone was found next to the bag. It is not disputed that methamphetamine was found in the form of crystals, with a combined weight of nine grams.
Mr Duncan was found guilty and sentenced to three and half years’ imprisonment, comprising a start point of three years and three months, an uplift of nine months for recent prior offending and offending while on release conditions, and a discount of six months for time spent on EM bail. No discount was applied for personal factors. The Judge acknowledged Mr Duncan had started to do some good things upon his release from prison, but noted at the same time he was reverting back to serious drug offending.
The defence case
The defence case was that methamphetamine that had been found in the bag belonged to Mr Duncan’s associate, Mr Martin, and that Mr Duncan had no knowledge of it being in the van. Mr Martin gave evidence the bag was his, that he had borrowed Mr Duncan’s van and left the bag in there. Mr Duncan explained the presence of his DNA on the scales on the basis that he had sold the scales to Mr Martin. There was also evidence showing that Mr Duncan was in the business of selling, among other things, digital scales. It was conceded that possession “for supply” was not in issue.
The first ground
Ms Hall, for Mr Duncan, submits that the Court was obliged to leave with the jury the issue of whether the methamphetamine was in possession “for supply”. She refers to R v Keremete,[2] together with Christian v R.[3] In the former case, this Court observed:
[12] We agree that a trial Judge is under a duty to direct a jury to consider all issues which are reasonably open to the jury on the evidence. That remains the case even where defence counsel has elected not to address on the issue in question. If there is a sufficient evidential foundation for a potential defence, and there is no relevant concession, the Judge must leave it to the jury to resolve: R v Tavete [1988] 1 NZLR 428 (CA).
[2]R v Keremete CA247/03, 23 October 2003.
[3]Christian v R [2017] NZSC 145 at [34]–[36].
The Crown responds, persuasively in our view, that possession for supply was effectively admitted by the defence. In the defence opening address, the sole issue left with the jury to determine was whether the defendant knew about the methamphetamine. The prosecutor and defence closed on the same basis. The Crown notes, without demure from Ms Hall, that prior to finalising the question trail, the Court then questioned counsel about whether possession for supply needed to be proven and counsel conceded that it did not. The Judge then summed up on that basis. This distinguishes the case from Christian, where the trial Judge adopted the “no issue” approach, despite a request by counsel that the summing-up include a direction on reasonable belief in consent.[4] Here, possession “for supply” was not, as a matter of fact, a live issue to be left with the jury.
[4]At [17].
Even if we are wrong about this, we are satisfied there is no scope for the jury to be in doubt as to the issue of supply, being the threshold test for miscarriage adopted by the majority in Christian.[5] The evidence now said to support the proposition the methamphetamine was not for supply is the evidence of Mr Martin who claimed the methamphetamine was his and was for his personal use. Plainly, the jury rejected his evidence when finding Mr Duncan was, in fact, in possession of it. In so doing, it is clear his evidence about his use of the methamphetamine could have had no material effect on the outcome.
[5]At [37].
For completeness, we address an ancillary point made in argument about the Judge telling the jury that the police needed to get court permission to search Mr Duncan’s home. This is said to have been prejudicial to Mr Duncan. The Judge in fact said:
[14] Now, you also heard evidence that the stopping of the car and the search of Mr Duncan’s house was pursuant to a search warrant. Now, to obtain such a warrant, the police would have had to satisfy a Court there was reason to believe that executing a warrant would turn up evidence of drug offending. Well, we do not know what the police asserted in their application, but we do know that at least to an important extent, it turned out it was not correct, because nothing at all of interest was found in his house. You must not speculate about, or be suspicious about, what may have led the police to apply, and the Court to grant, that search warrant application. The issue, the only issue you need to decide is whether or not you are sure on the evidence placed before you that Mr Duncan was in possession of the methamphetamine found in the car that he was driving on 4 March 2016.
Rather than prejudicing Mr Duncan, the Judge quite properly directed the jury not to speculate about the basis for the search.
The second ground
The second ground of the appeal relates to the discussion of Mr Martin’s evidence during the Crown closing. As noted, Mr Martin gave evidence that he had borrowed Mr Duncan’s van and had left the grey bag containing methamphetamine in the van when he returned it to Mr Duncan. He listed items that were in the bag and explained that the scales belonged to him but had been purchased from Mr Duncan. His evidence was therefore crucial to the defence case that the bag did not belong to Mr Duncan.
Ms Hall submits, in short, that the Crown closed to the jury on the basis that Mr Martin did not mention the $3,000 cash found in the bag when asked about its contents. The Crown put it to the jury that this was indicative of Mr Martin not being in possession of the bag. Ms Hall submits that, as Mr Martin was not cross-examined on this point, it should not have been left with the jury.
The Crown in fact invited the jury to disregard Mr Martin’s evidence for four reasons, including:
(a)he told the Court that he had lied both when he told Mr Duncan the reason he wanted to borrow the bag and when he asked his friend to get his godfather’s phone number;
(b)he said he was not close to Mr Duncan until confronted with evidence of regular text messages between them;
(c)text messages between him and a Mr Brown show they were trying to get their stories straight; and
(d)he never mentioned the cash in the bag.
We accept, ideally, Mr Martin would have been directly cross-examined on his knowledge of the $3,000. But when he gave evidence-in-chief he forgot about the bag. He was then asked in cross-examination about the contents of the bag. He mentioned the methamphetamine worth about $5,000 and paraphernalia but omitted the $3,000 cash. He was also cross-examined on his forgetfulness about the bag. He explained he was not forgetful. He said he was scared because Mr Duncan was “fucked off with us being so drunk”. He was pressed on this and reminded that he had said he forgot about it three or four times. He was also questioned again on the contents and he maintained he knew what was in it. It was therefore plainly available to the Crown to comment in closing on the implausibility of Mr Martin simply forgetting about a bag which contained $5,000 of methamphetamine and $3,000 cash. Furthermore, we doubt whether cross-examining Mr Martin about his omission to mention the $3,000 would have advanced the defence case. It was highly unlikely to have bolstered his clearly damaged credibility.
In any event, the Crown case was compelling. The omission to cross-examine on this point does not raise any real scope for doubt. The prosecutor put it aptly in closing:
Believing that is not [Mr Duncan’s] methamphetamine involves believing that the one time Mr Martin borrowed the defendant’s car he forgot his bag containing $9000 worth of methamphetamine and $3000 worth of cash; he even just forgot there was $3000 in there; when the defendant gets into the van the next day his phone unfortunately falls down behind the grey bag, which despite being just beside the driver’s seat he does not notice or look inside; of all the sets of scales that he supposedly sold as part of his e‑cigarette business it was a set of scales that he had touched that was in the car and it was that set of scales that had been used to deal methamphetamine and which of course was found with the methamphetamine.
Sentence appeal
The primary issue on the sentencing appeal is this: was it available to the sentencing Judge to apply an orthodox R vFatu band two assessment when the purity of the methamphetamine had not been considered?[6] Ms Hall submitted that the Fatu bands apply by reference to what the market would regard as P — that is, the form of the drug in which the purity exceeds 60 per cent.[7] But, as the purity of the methamphetamine was never tested, it could not be assumed, Ms Hall submits, it exceeded the 60 per cent threshold. Accordingly, she submits, the Judge was wrong to dismiss the significance of absence of evidence of purity.
[6]R v Fatu [2006] 2 NZLR 72 (CA) at [34].
[7]At [30].
This point is not without merit. Section 24(2)(c) of the Sentencing Act 2002 states, the prosecutor must prove beyond reasonable doubt the existence of any disputed aggravating fact and must negate beyond reasonable doubt any disputed mitigating fact raised by the defence that is not wholly implausible or manifestly false. Mr Duncan invited the Crown to assess the purity of the methamphetamine prior to sentencing, while it could still do so. This was not done. Given that purity is a relevant factor per Fatu and bearing in mind that the Crown carries the burden of proving the severity of the offending, including by reference to purity, there is much to be said for the proposition that the Crown should have had the methamphetamine assessed.
However, in our view, Fatu is not authority for the proposition that the purity of the methamphetamine must be proven beyond reasonable doubt by testing in every case. On the contrary, William Young and Chambers JJ stated in Fatu:[8]
In practice, the purity of methamphetamine which is sold as “P” is usually in the range of 70 per cent – 80 per cent and almost always over 60 per cent.
(Emphasis added.)
[8]At [28].
The sentencing bands are then premised on the basis the methamphetamine is what the market would regard as P; that is a form of the drug in which the purity is in the order of, or exceeds 60 per cent. The Court suggested a dispute about purity should be signalled prior to sentencing and the issue can be determined by the Court, “presumably after analysis of the drug”.[9] As noted, a dispute was signalled, but not acted upon.
[9]At [30].
A curious feature of this case, however, is that Mr Duncan denied possession and offered no direct evidence about purity at trial, in sentencing or on this appeal. The only evidence that might cast doubt on the purity of the methamphetamine is Mr Martin’s evidence that the methamphetamine was for his personal use and valued at $5,000. But his evidence was rejected by the jury. There was and is therefore no cogent evidential basis upon which to doubt that the methamphetamine was P, as described in Fatu. On the contrary, the evidence, including the presence of scales, point bags and $3,000 in cash, strongly supports the conclusion that the methamphetamine was market grade quality P, that is, above 60 per cent.
Assuming, however, Mr Martin is to be believed on the value of the methamphetamine, based on the uncontested evidence of Detective Sergeant Rankin, a value of $5,000 translates to about $555 per gram, well within the usual market price for methamphetamine and about $200 below the common price of $750 per gram.[10] This supports the conclusion that, while not top quality, the methamphetamine was, nevertheless, market grade P.
[10]Sergeant Rankin stated a gram of methamphetamine will sell for between $350 and $1200 with around $750 being common.
Ms Hall also points to Mr Duncan’s previous conviction. The analysis of the methamphetamine for that offending revealed a purity of 32 per cent. This is said to suggest the present P was likely to be a lower grade quality than the market would ordinarily expect. But this can hardly be said to be cogent evidence — presumably of a propensity kind — about the purity of the methamphetamine in this case. Put simply, Mr Duncan cannot seriously rely on his previous market practice to raise an evidential issue as to the purity of methamphetamine found in a bag, he says, was never in his possession.
The Crown submits that, even if the lower calculation is adopted, say 32 per cent, a starting point of three years and three months was not out of range, based on the assumption that at 32 per cent purity the quantum reduces to 4.8 grams.[11] If this calculation is correct, the offending sits at the top of band one of Fatu, which has an upper limit of four years’ imprisonment. We agree this would mean that the starting point remained within range. But there is no evidence supporting this linear calculation. Rather, we prefer, like the Judge, to evaluate the available evidence to determine whether the methamphetamine was market grade P and if so, apply Fatu in the usual way. There being cogent evidence the methamphetamine was market grade quality P, we see no real scope for doubt about the market grade purity of the methamphetamine.
[11]That is (32/60) x 9 grams = 4.8 grams.
The second aspect of the sentence appeal is Ms Hall’s submissions that the uplift of nine months, or 23 per cent, for prior offending was too high and that Mr Duncan’s efforts to re-enter the community after his release from his 2011 offending should have warranted a discount.
In August 2013, Mr Duncan was sentenced to three years’ imprisonment for possessing methamphetamine for supply, together with other drug-related offending. He was still on release conditions when the present offending occurred in March 2016. Plainly, his prison sentence had little, if any, deterrent effect. Uplifts of 20 to 23 per cent have been confirmed by this Court to defendants who were on parole for previous similar offending.[12] Therefore, while high, the present uplift was not out of range.
[12]Lavea v R [2014] NZCA 192 at [24]; Waterworth v R [2012] NZCA 58 at [43]–[45]; Vernon v R [2010] NZCA 308 at [14]–[16].
Finally, we do not accept that a discount was warranted for Mr Duncan’s attempts to start afresh. He may have started afresh, but it did not last long. He reoffended while on release conditions. It was open to the Judge to find that the efforts Mr Duncan had made to reintegrate himself in the community were cancelled out by the fact that he had reverted to serious drug offending.
The appeal against conviction and sentence is therefore dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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