Edwardson v R

IN THE COURT OF APPEAL OF NEW ZEALAND

CA232/2017
[2017] NZCA 618

BETWEEN	THOMAS GORDON EDWARDSON Appellant
AND	THE QUEEN Respondent

CA256/2017
BETWEEN	TE HERE MAIHI MAAKA Appellant
AND	THE QUEEN Respondent

CA265/2017
BETWEEN	JOHN GERARD VIJN Appellant
AND	THE QUEEN Respondent

CA268/2017
BETWEEN	TRAVIS JAMES SADLER Appellant
AND	THE QUEEN Respondent

CA312/2017
BETWEEN	PETER FRANCIS ATKINSON Appellant
AND	THE QUEEN Respondent

CA424/2017
BETWEEN	FALCO BROUQ CELLAH MAAKA Appellant
AND	THE QUEEN Respondent

Hearing:	10 October 2017
Court:	Kós P, Woolford and Collins JJ
Counsel:	M E Goodwin and A C Cresswell for T G Edwardson A J Maxwell-Scott for T H M Maaka L O Smith for J G Vijn R M Mansfield and S R Lack for T J Sadler N P Chisnall for P F Atkinson J-A Kincade for F B Maaka R M A McCoubrey and F M T Culliney for Respondent
Judgment:	20 December 2017 at 4.00 pm

JUDGMENT OF THE COURT

AThe appeals against conviction are dismissed.
BMr Atkinson’s application for leave to adduce fresh evidence on appeal is granted.
CMr T Maaka’s appeal against sentence is allowed. The sentence imposed in the High Court is quashed and replaced with a sentence of 14 years and eight months’ imprisonment with a minimum period of imprisonment of six years and seven months.
DMr Vijn’s appeal against sentence is allowed. The sentence imposed in the High Court is quashed and replaced with a sentence of three years and nine months’ imprisonment.
EMr Sadler’s appeal against sentence is allowed. The sentence imposed in the High Court is quashed and replaced with a sentence of 16 years and eight months’ imprisonment with a minimum period of eight years and four months.
FMr Atkinson’s and Mr F Maaka’s appeals against sentence are dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Woolford and Collins JJ)

Introduction

All appellants appeal their convictions for multiple charges relating, in the main, to the manufacture and possession of methamphetamine for the purpose of supply. Five of the appellants appeal their sentences.[1]
[1]R v Hines [2017] NZHC 769 [Sentencing notes].
The charges arose from a police operation that led to nine defendants, including the six appellants, facing trial by jury in the High Court at Auckland before Downs J. The police investigation focused upon the suspected manufacture and distribution of methamphetamine by members of a chapter of the Head Hunters Motorcycle Club (Head Hunters) in the Auckland area. The alleged leader of the group was Mr Hines, whose appeals against conviction and sentence are to be heard by this Court on another occasion.[2] Mr Hines, Mr Te Here Maaka (Mr T Maaka), Mr Falco Maaka (Mr F Maaka) and Mr Sadler were patched members of the Head Hunters. Mr Edwardson (the father of Mr Sadler) was a prospect for the Head Hunters. Mr Vijn and Mr Atkinson became involved through their association with various members of the Head Hunters.
[2]Mr Hines’ appeals could not be heard with the current appeals because of his ill health.
The police operation primarily consisted of intercepted telephone communications from 26 March 2015 to 26 July 2015. The police also carried out visual surveillance of the targets of the operation.
The Crown case relevant to this appeal can be conveniently divided into two interrelated parts, which we refer to as:
(a)manufacturing methamphetamine on the evening of 18 April 2015 and/or the morning of 19 April 2015; and
(b)the storage unit.

There is one other charge of attempting to manufacture methamphetamine by Mr Atkinson on 23 April 2015 that falls slightly outside of these headings.

Manufacturing of methamphetamine on or about 18 April 2015

The Crown case at trial was that a core group comprising Mr Hines, Mr T Maaka, Mr F Maaka, Mr Edwardson and Mr Sadler worked together to source the materials required to manufacture methamphetamine and that Mr Vijn assisted by obtaining toluene and a water distiller to be used in the manufacturing process. The Crown alleged Mr Atkinson was the manufacturer or “cook” of the methamphetamine and that the manufacturing process took place on the evening of 18 April 2015 and/or the morning of 19 April 2015 in a property at 36 Withers Road, Glen Eden. That property was owned by a friend of Mr T Maaka. Approximately one kilogram of methamphetamine was alleged to have been manufactured. Thereafter the core group were, according to the Crown, intending to become involved in the distribution of the methamphetamine.
It is accepted that on 10 April 2015 Mr Sadler obtained 20 sets of Contac-NT from a Mr Sun.[3] Pseudoephedrine is extracted from Contac-NT as part of the process of manufacturing methamphetamine. There was expert evidence that the quantity of Contac-NT supplied by Mr Sun to Mr Sadler could have produced about one kilogram of methamphetamine.
[3]This equates to 4.46 kilograms of Contac-NT.
The intercepted communications involving Mr Sadler, Mr Edwardson and Mr Hines indicated a heightened level of activity between 10 April 2015 and 18 April 2015. The Crown accepted it was not possible to identify exactly what was being discussed during this period but it nevertheless submitted at trial that the conversations were consistent with preparations for a significant event.
Intercepted conversations on 18 April 2015 into the early hours of 19 April 2015 laid the foundation for the Crown case that methamphetamine was manufactured at that time at 36 Withers Road. Examples of the intercepted conversations included Mr Atkinson asking for a piece of equipment consistent with a water distiller, an item of equipment used towards the end of the process of manufacturing methamphetamine. In the same conversation Mr Vijn offered Mr Atkinson toluene. The intercepted communications and telephone polling data suggested Mr F Maaka was at 36 Withers Road during the time the Crown says methamphetamine was being manufactured. There was evidence that Mr T Maaka was also present for a period during which time he provided a dedicated cellphone to Mr Atkinson, who spoke with Mr Vijn and discussed the obtaining of toluene.
No methamphetamine was ever located at 36 Withers Road. When the property was forensically examined on 28 July 2015, it was found to have contained methamphetamine residue at a level 10 times higher than the highest levels that would be expected if methamphetamine had been smoked in that property.

The storage unit

On 4 June 2015 the police executed a search warrant at a storage unit in Panmure, Auckland. Inside the storage unit the police located a black van registered in the name of a company owned by Mr Vousden, one of the defendants in the trial. Inside the van were the following items:
(a)136.5 grams of methamphetamine packaged in five one-ounce bags valued at approximately $60,000.
(b)Approximately 33 litres of hypophosphorous acid valued at approximately $65,000.
(c)Nine kilograms of iodine valued at somewhere between $9,000 and $45,000.
(d)Five firearms, including a revolver wrapped in a bandana.
(e)A large quantity of ammunition.
The Crown’s case was that these items were in the possession of Mr Hines, Mr Sadler, Mr T Maaka and Mr Edwardson.
There was evidence that a Nadine Stone, a friend of Mr Sadler and an acquaintance of Mr T Maaka rented the storage unit on 18 April 2015, the same day methamphetamine was said to be manufactured at 36 Withers Road. The manager of the storage unit recalled two Māori men driving the van into the storage unit approximately two hours after Ms Stone had signed the papers to rent the unit.
A number of intercepted communications linked Mr Sadler and Mr T Maaka to the storage unit.[4]
[4]See [50]–[51] of this judgment for further discussion.
Further intercepted communications between Mr Edwardson and Mr Sadler on 28 May 2015 were to the effect that Mr Edwardson had told Mr Sadler that he had been going to the unit.
The police arrested Ms Stone on 4 June 2015. That sparked a series of communications between Mr Edwardson and Mr Sadler, during which Mr Sadler asked Mr Edwardson if he “[got] rid of it”. Mr Edwardson replied he was trying to. Mr Hines, Mr Edwardson, Mr Sadler and Mr T Maaka conferred that evening during which Mr Hines said that Ms Stone and Mr Sadler would be in prison “for a long time”. Mr Sadler and Mr Edwards later discussed what Ms Stone might have said to police.
No fingerprints were found on the van or its contents. There was however DNA extracted from a bandana wrapped around the revolver. That DNA corresponded with Mr Hines’ DNA profile.

Common threads

There are two threads common to all conviction appeals. First, each appellant argues that the jury’s verdicts were unreasonable because there was insufficient evidence for a conviction.[5] A jury verdict will be unreasonable if, after having regard to all the evidence, a court is satisfied the jury could not reasonably have been convinced to the requisite standard that the appellant was guilty.[6] In carrying out our appellate function we bear in mind the following factors:[7]
(a)We are performing a review function not one of substituting our view of the evidence with that reached by the jury.
(b)We should give appropriate weight to such advantages the jury may have had over us in relation to the assessment of evidence.
(c)The weight to be given to individual pieces of evidence is essentially a jury function.
(d)Reasonable minds may disagree on matters of fact.
(e)It is the jury that finds the facts. We should not lightly interfere with its findings.
[5]Criminal Procedure Act 2011, s 232(2)(a).
[6]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37; and Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1.
[7]R v Owen, above n 6, at [13].
The second thread is that those who have appealed their convictions associated with the manufacture of methamphetamine on or about 18 April 2015 and/or morning of 19 April 2015 maintain Downs J erred by allowing the jury to determine that methamphetamine had been manufactured at 36 Withers Road on the night in question. The appellants in relation to this aspect of the appeals say the evidence against them was so inconclusive that the jury must have “speculated” that methamphetamine had been manufactured at 36 Withers Road during the times alleged by the Crown.[8]
[8]We deal with this issue under Mr Atkinson’s appeal, and the Judge’s direction at [34] of this judgment. We again discuss the issue under Mr Vijn’s appeal at [75]–[78] of this judgment.
We first address the appeal by Mr Atkinson, whom the Crown says “cooked” the methamphetamine on the night in question, before considering the remaining appeals against conviction.

Appeal against conviction: Mr Atkinson

Mr Atkinson appeals his convictions in relation to two charges:
(a)manufacturing methamphetamine on 18 April 2015; and
(b)attempting to manufacture methamphetamine on 23 April 2015.
Mr Chisnall, counsel for Mr Atkinson, submitted a miscarriage of justice occurred when Mr Atkinson was convicted of manufacturing methamphetamine and that this conviction could not be supported by the evidence. Mr Chisnall submitted Downs J erred in law by empowering the jury to speculate about how the alleged manufacturers, from a practical perspective, might have achieved their goal in the timeframe available.
The conviction for attempting to manufacture methamphetamine was challenged on the basis that it was unreasonable.[9] It was contended the Judge’s warning about the risks attaching to third‑party conversations about Mr Atkinson caused a miscarriage of justice.
[9]While merging with the unreasonable verdict ground, it was also asserted that the trial Judge erred in law when he dismissed Mr Atkinson’s application to dismiss his charges under s 147.
The evidence concerning the manufacture of methamphetamine at 36 Withers Road on the night of 18 April 2015 and/or morning of 19 April 2015 came primarily from three sources. First, the uncontested fact that Mr Sadler acquired a significant quantity of Contac-NT on 10 April 2015. Second, intercepted communications between Mr Vijn, Mr Atkinson, Mr F Maaka and others concerning the delivery by Mr Vijn of a water distiller and toluene, items normally required to manufacture methamphetamine. Mr Chisnall submitted the intercepted communications did not provide adequate proof that methamphetamine was manufactured at 36 Withers Road on the night in question, and that this submission was reinforced by the jury’s decision to acquit Mr Vijn of possessing a water distiller. The third source of evidence came from an Institute of Environmental Science and Research (ESR) scientist, Mr Russell. That evidence dealt with the opportunity to manufacture methamphetamine and the forensic analysis of 36 Withers Road.
The key evidence from the intercepted communications was as follows:
(a)In a telephone call at 6.31 pm on 18 April 2015, Mr Atkinson asked Mr Vijn for an object, the description of which was consistent with a water distiller. During that conversation Mr Atkinson said he was “[getting] in the shit” and that he had been there “too long”. At 6.46 pm Mr Vijn told Mr Atkinson that he knew where one was and that he needed to pick it up. Mr Vijn then sent a text message to a third party asking if he could pick up the “machine”.
(b)At 6.57 pm Mr Atkinson asked Mr Vijn to bring the “tolley”, which the Crown says was a reference to toluene. Mr Vijn instructed Mr Atkinson to bring the “proper one”.
(c)At 8.47 pm Mr Atkinson asked Mr Vijn for the “twenty” container of “tolley”.
(d)At 8.49 pm during a conversation with Mr Vijn, Mr Atkinson talked about something “[coming] over blue”, that it burnt his eyes and had a “weird smell”. Mr Atkinson talked about “dismant[ling] this thing” and that he wished Mr Vijn would get there sooner. That call ended with Mr Atkinson telling Mr Vijn that he wanted “the tolley”.
(e)At 10.36 pm Mr Atkinson called Mr Vijn who said he had “it sorted” and that “it’s just [been] picked up right now and then I shall bring it”.
(f)At 11.36 pm Mr Vijn told Mr Atkinson he had sourced 10 litres. Mr Atkinson replied “ten litres, you said 20”. In the same conversation Mr Vijn said he would “pick up the other thing” from Avondale.
(g)At 1.26 am on 19 April 2015 Mr F Maaka received a telephone call from Mr Vijn and asked where the toluene was. Mr F Maaka said during this conversation that they had been waiting there for hours.
(h)At 2.14 am Mr Vijn received a text from an unknown person saying “[no] luck my end … can you put your feelers out”.
The Crown’s case in closing was that the process of manufacturing had commenced before 6.32 pm on 18 April 2015 when Mr Atkinson asked Mr Vijn for a water distiller. The Crown said that at 12.55 am on 19 April 2015 Mr Vijn delivered the water distiller and toluene. Telephone polling data placed Mr Vijn in the vicinity of 36 Withers Road at this time. The Crown closed on the basis that the water distiller was required at the final stages of manufacture and that by this time all that was required was a process of distillation to convert the manufactured drug into a useable salt.
Mr Chisnall submitted that the last text to Mr Vijn meant that Mr Vijn had, by 2.14 am on 19 April 2015, failed to locate the toluene, the water distiller or both.
Mr Russell’s evidence was that the first stage of manufacture of methamphetamine, depending on the recipe used, normally involves the extraction of pseudoephedrine from Contac-NT and that it is at that point toluene is normally used. In the final stages of manufacture a water distiller is commonly used to convert the methamphetamine product into a useable salt. Mr Russell said that in laboratory conditions it takes about eight hours to manufacture 20 grams of methamphetamine. Mr Russell also said that he did not have experience with “field recipes” and that he could not say how long it would take to manufacture one kilogram of methamphetamine outside of a controlled environment. Mr Russell’s evidence was that a field setting would not necessarily be an impediment to producing one kilogram of methamphetamine in eight hours provided the manufacturer had the right equipment and experience.
Mr Russell also explained that the swabs taken during the forensic examination of 36 Withers Road on 28 July 2015 revealed methamphetamine residue at a level that was 10 times higher than the highest levels that would be expected from smoking methamphetamine and that it would take, roughly, between 1,000 and 4,500 individual smoking events to replicate the traces of methamphetamine found at that address.
In dismissing an application to discharge Mr Atkinson pursuant to s 147 of the Criminal Procedure Act 2011 in relation to the manufacturing charge, Downs J said:[10]
I reject the submission the evidence is not capable of proving methamphetamine was made at Withers Road. This submission tended to focus on the ESR evidence to the exclusion of the evidence more generally. It is axiomatic the jury may have regard to all relevant evidence in determining whether methamphetamine was made at the alleged scene; the jury is not confined to the evidence of Mr Russell, the ESR scientist, or the assumptions he made in conducting his analysis.
[10]R v Hines [2017] NZHC 437 [Section 147 decision] at [29].
In his summing-up to the jury Downs J emphasised the key question was whether the evidence proved the charges beyond reasonable doubt. That direction was made in the context of concerted challenges by defence counsel to the Crown theory that methamphetamine had been manufactured at 36 Withers Road on the evening of 18 April 2015 and/or morning of 19 April 2015. The defence pointed to the evidence from Mr Russell to support their submission that there was insufficient time for methamphetamine to be manufactured in the way the Crown alleged.
We are satisfied that, when taken as a whole, there was sufficient evidence for the jury to conclude methamphetamine was manufactured at 36 Withers Road on the night of 18 April 2015 and or the morning of 19 April 2015.
While aspects of the intercepted communications between Mr Atkinson, Mr Vijn, Mr F Maaka and others are hard to interpret, primarily because they deliberately used guarded and cryptic language, our reading of all the transcripts produced for the time period in question leads us to conclude:
(a)The process of manufacturing methamphetamine was in all likelihood underway by the early evening of 18 April 2015.
(b)While there appear to have been some issues over Mr Vijn locating and delivering a water distiller and toluene, there was sufficient evidence to enable the jury to conclude those items were delivered at some time during the period of manufacture.
(c)The meaning of the text to Mr Vijn at 2.14 am is hard to discern. We do not know who sent it or what it meant.
(d)The evidence from Mr Russell supported the Crown case that methamphetamine was manufactured at 36 Withers Road on the night in question. Mr Russell’s evidence was that a person with the right equipment and experience could have made the methamphetamine alleged to have been manufactured at 36 Withers Road on the night of 18 April 2015 and/or morning of 19 April 2015.
(e)While the ESR forensic evidence did not establish methamphetamine was manufactured at 36 Withers Road, it was nevertheless consistent with methamphetamine having been manufactured at some point at that address.

We are satisfied there was sufficient evidence to enable the jury to convict Mr Atkinson of manufacturing methamphetamine on or about 18 April 2015.
We are also satisfied Downs J’s jury directions were adequate, particularly in the context of the jury having been presented with competing closing addresses on whether or not methamphetamine was manufactured at 36 Withers Road. Ultimately, the jury was required to assess all the evidence and decide if they were satisfied beyond a reasonable doubt that methamphetamine had been manufactured at the address at the time alleged by the Crown. Specifically, the Judge reminded the jury that defence counsel had expressed grave doubt as to whether someone “without scientific training or expertise could make a kilogram of the drug” in the timeframe set out by the Crown. The Judge’s directions on circumstantial evidence and inferences were orthodox and the jury was told on three occasions not to guess or speculate. There was no error in the Judge’s directions.
For completeness, we do not think there is anything in the argument the jury’s decision to acquit Mr Vijn on the charge of possessing a water distiller undermines the conviction of Mr Atkinson for manufacturing methamphetamine. We explain our reasons for this conclusion when considering Mr Vijn’s appeal against conviction.[11]
[11]See [59]–[81] of this judgment.
The conviction relating to the attempted manufacture of methamphetamine on 23 April 2015 was supported by intercepted communications. On the morning of 23 April 2015, Mr Atkinson rang Mr Vijn and asked him to bring what was understood to be toluene. At 3.30 pm, Mr Atkinson’s partner called Mr Vijn asking what happens “if hydrochloric goes in your eye?” and she said “he’s doing it [but] can’t even see out of his eye”. She said to Mr Atkinson off the telephone “he can help you do the rest of that stuff” and Mr Vijn’s response was that he would drive to meet them and “help [Mr Atkinson]”. During that telephone call, Mr Atkinson told his partner to not “talk about it on the phone”.
Mr Vijn later spoke to his female friend about treatment for hydrochloric acid in a person’s eye. She concluded “he’s gonna go to jail now” and Mr Vijn appears to have shared that view, observing Mr Atkinson would be blind now.
We agree with Downs J that despite these conversations being held in Mr Atkinson’s absence, there was no real issue as to the admissibility of them due to the engagement of the co-conspirators rule contained in s 22A of the Evidence Act 2006.[12]
[12]Section 147 decision, above n 10, at [59].
The conversation on the morning of 23 April 2015 between Mr Atkinson and Mr Vijn was sufficient to establish reasonable evidence of a conspiracy or joint enterprise, and that Mr Atkinson was a member of that conspiracy or joint enterprise.[13] Mr Chisnall submitted that it is difficult to describe Mr Vijn’s conversations with third parties as statements made in furtherance of the conspiracy or joint enterprise. We disagree and rely on two key points. First, there was expert evidence that hydrochloric acid is employed in the final step of manufacturing methamphetamine. Second, the discussion about whether Mr Vijn should come to help finish “the rest of that stuff” and his offer to meet with and “help [Mr Atkinson]” not only showed the enterprise was in operation, but also that there was an intention to advance or further the conspiracy or joint enterprise.[14]
[13]Evidence Act 2006, s 22A(a) and (b).
[14]Section 22A(c). See also Kayrouz v R [2014] NZCA 139 at [35].
We see no error in the Judge’s general direction to address the dangers associated with the use of evidence admitted under the co-conspirators’ rule when discussing the intercepted conversations, particularly when he used the conversation between Mr Vijn and his female friend on 23 April 2015, as an example.
We accept the Crown’s submission that Downs J was correct when he dismissed Mr Atkinson’s application under s 147 to be discharged in relation to the attempted manufacture of methamphetamine charge. The intercepted communications evidence by itself was sufficient to establish that charge, as was Mr Russell’s evidence concerning the manufacture of methamphetamine at the premises in question.[15]
[15]Methamphetamine was present at the property and a 20-litre container of hydrochloric acid, a full 10-litre container of dirty water and an electric hot plate were also located.
Accordingly, we dismiss Mr Atkinson’s appeal against conviction.

Appeal against conviction: Mr T Maaka

Mr T Maaka was convicted of:
(a)manufacturing methamphetamine;
(b)possession of methamphetamine for supply;
(c)possession of materials for the manufacture of methamphetamine;
(d)participating in an organised criminal group;
(e)five charges of unlawfully possessing a firearm; and
(f)unlawful possession of ammunition.
The sole ground of appeal advanced by Mr T Maaka in relation to his conviction appeal is that the jury’s verdicts were unreasonable due to a lack of evidence.
The conviction appeal by Mr T Maaka substantially replicates submissions made at the conclusion of the Crown’s case when Mr T Maaka unsuccessfully argued that the charges against him should be dismissed pursuant to s 147 of the Criminal Procedure Act.[16] In effect, Mr T Maaka’s appeal challenges not only the jury’s verdict but also the decision of Downs J when he concluded there was sufficient evidence for a properly directed jury to reasonably convict him.
[16]Section 147 decision, above n 10.
Ms Maxwell-Scott, counsel for Mr T Maaka, submitted that the evidence relating to his involvement in the manufacturing process was limited, general in nature and the inferences the jury were asked to draw were not fair inferences because they lacked an evidential foundation and amounted to speculation. Similar submissions were made in relation to the storage unit charges.
In our assessment, the following evidence was sufficient for the jury to draw the inferences invited by the Crown in relation to the charges against Mr T Maaka arising from the manufacture of methamphetamine at 36 Withers Road:
(a)Mr T Maaka was a senior member of the chapter of the Head Hunters and closely involved with Mr Hines and other members of the core group against whom there was evidence of manufacturing and possessing methamphetamine for the purposes of supply.
(b)The owner of 36 Withers Road was a friend of Mr T Maaka.
(c)Mr T Maaka participated in a conversation at 6.55 pm on 18 April 2015 in which Mr Vijn called a cellphone that previously had been used by Mr Atkinson. That telephone call was, however, answered by Mr T Maaka. He told Mr Vijn that Mr Atkinson was busy and that he would get Mr Atkinson to telephone Mr Vijn back.
(d)Telephone polling data showed Mr T Maaka was, at that time, in the vicinity of 36 Withers Road.
In his s 147 decision, Downs J attributed to Mr T Maaka comments that were in fact made by Mr F Maaka later on 18 April 2015. Notwithstanding that error, we are satisfied these strands of evidence provided sufficient evidence to form a basis for the inference that Mr T Maaka was present at 36 Withers Road during part of the time methamphetamine was being manufactured at that address.
The Crown also relied on evidence that Mr T Maaka met with Mr Sun, on 12 May 2015. Mr Hines and Mr Sadler were also present at that meeting. The Crown maintains Mr Sun was paid at that meeting for pseudoephedrine that he had supplied two days earlier. We adopt a cautious approach in attributing much weight to allegations relating to the purchase of pseudoephedrine after the manufacture of methamphetamine is said to have taken place on 18 and/or 19 April 2015.
There was sufficient evidence linking Mr T Maaka to the contents of the storage unit. In summary that evidence was:
(a)Mr T Maaka was the primary point of contact between the group and Ms Stone who, on the Crown’s case, rented the storage unit on behalf of the group. Evidence of Mr T Maaka’s contact with Ms Stone included inquiries and reminders about paying the rent for the storage unit.
(b)On 13 May 2015 Mr T Maaka made comments to Ms Stone about what was in the storage unit. He told her she didn’t need to know what was in the unit and said that there was “nothing dodgy” in the unit.
(c)After the police searched the storage unit Ms Stone tried to contact Mr T Maaka and when he learnt of her arrest he said in an intercepted conversation that he would “sort it out”.
When these strands are bound together they created a sound evidential basis for the jury to conclude Mr T Maaka knew of and had power over the contents of the storage unit and was therefore in possession of the items in question.
There was therefore sufficient evidence for the jury to conclude that Mr T Maaka was guilty of all charges. His appeal against conviction is therefore dismissed.

Appeal against conviction: Mr Vijn

Mr Vijn was convicted of:
(a)two charges of possession of toluene, a precursor substance;
(b)possession of precursor substances, including acetone and hydrochloric acid; and
(c)possession of materials capable of being used in the manufacture of methamphetamine.

Mr Vijn was found not guilty of a charge of possession of a water distiller, that being equipment capable of being used in the manufacture of methamphetamine.

Five grounds of appeal are advanced on behalf of Mr Vijn:
(a)the prejudicial impact of propensity evidence relating to previous convictions outweighed its probative value;
(b)the Judge misdirected the jury by offering contrasting directions on the question of possession;
(c)the jury returned inconsistent verdicts on the first charge of possession of toluene (Charge 7) and the charge of possession of a water distiller (Charge 8) when the evidence relating to both charges was virtually identical;
(d)the Judge failed to give sufficient directions concerning inferences to be drawn from circumstantial evidence; and
(e)the Judge should not have declined Mr Vijn’s application for dismissal of Charges 7, 8 and 10 (Charge 10 relating to the second charge of possession of toluene) pursuant to s 147 of the Criminal Procedure Act.
In respect of Charge 7, possession of toluene on 18 April 2015, the Crown alleged that Mr Atkinson, in manufacturing a kilogram of methamphetamine, enlisted Mr Vijn to help source equipment and materials. In respect of Charge 10, the charge of possession of toluene on 23 April 2015, the Crown alleged Mr Atkinson’s attempt to manufacture methamphetamine involved Mr Vijn being asked to supply toluene for that purpose.
In respect of the remaining charges of possession of precursor substances and materials on 28 July 2015, the police searched Mr Vijn’s home and found 60 millilitres of acetone and two litres of hydrochloric acid, both of which are precursor substances along with other materials used to manufacture methamphetamine. Police then searched a storage unit in connection with Mr Vijn and found a number of documents associated with the manufacture of methamphetamine.
The Crown sought to admit propensity evidence against Mr Vijn, which consisted of previous convictions for methamphetamine-related offending from two discrete time periods — 2006 and 2011. Following police searches in 2006, Mr Vijn pleaded guilty to: two charges of manufacturing methamphetamine; six charges of possessing equipment, material or precursor substances; and one charge of possession of methamphetamine. He was sentenced to three and a half years’ imprisonment for that offending. In 2011, police searched Mr Vijn’s home and his father’s nearby unit. The search resulted in further convictions for manufacturing methamphetamine and for possessing related equipment and precursor substances. In a pre-trial decision, Downs J admitted Mr Vijn’s previous convictions as propensity evidence.[17]
[17]R v Atkinson [2016] NZHC 3171.
Ms Smith, counsel for Mr Vijn, submitted that Downs J was wrong to do so because the previous offending was not gang related and, while deemed commercial, was lower in scale. She submitted the previous convictions were consistent with Mr Vijn’s severe dependency and there was no evidence that anyone else was involved with the previous offending.
In our view, the previous convictions demonstrate a propensity on Mr Vijn’s part to involve himself in the manufacture of methamphetamine. Mr Vijn’s severe dependency does not distinguish his previous offending from the present offending. Many offenders are driven by their addiction to methamphetamine. Although no one else was charged with Mr Vijn’s previous offending, it would have been unusual if others were not involved with the manufacture of methamphetamine. Equipment and materials are often sourced from others. We are also of the view that the risk of unfair prejudice was met by appropriate directions in the summing up.
Ms Smith submitted that the Judge misdirected the jury by offering contrasting directions on the question of possession. In his summing-up Downs J gave standard directions on the concept of possession. He confirmed in a minute of 9 March 2017 that “[g]iven the way in which the Crown has put its case, I directed the jury Mr Vijn must have come into possession of the articles, meaning he actually got them.” There is no criticism of the Judge’s directions in his summing-up or the comments in his minute.
Ms Smith, however, takes issue with the answer given by the Judge to a question asked by the jury during its deliberations. The question from the jury read:
Do the following statements meet the criteria for possession (i.e. the exercise and control element);
I have it.
I have it organised.
I can organise that.
I can bring it.
I can sort that for you.
The Judge answered the question in three parts. First, he reminded the jury of the legal principles in relation to control; control being the second element of possession, the first being knowledge. Second, he reminded the jury that their key function was to reach factual conclusions and then to apply those conclusions to the ingredients of the charges. He said that he could not answer whether a set of hypothetical facts or possibly hypothetical facts give rise to a particular legal conclusion because, as the jury would appreciate, the very reason why they were there was to decide whether their factual conclusions gave rise to guilt beyond reasonable doubt.
Ms Smith accepts the first two parts of the Judge’s answer but takes issue with the third part and says it contradicted his earlier directions.
The third part of the Judge’s answer read:
If your question is really are these types of statements, or statements like this, possibly evidence of possession and more particularly possibly evidence of the element of control, the answer is yes – possibly – but it depends upon your factual conclusions.
We see nothing inconsistent with the third part of the Judge’s answer as the five statements as specified by the jury could all possibly indicate possession. They range from “I have it”, which clearly infers actual possession, through to “I can sort that for you”, which may or may not infer actual possession. Whether it does or not would depend upon the conclusions of fact reached by the jury. The use of the word “possibly” by the Judge was therefore appropriate. It should be remembered that the jury was in possession of the question trail (which had been agreed with counsel), that clearly set out the legal elements of each offence in relation to possessing a precursor substance. The question trail stated:
1.        Was [Mr Vijn] in possession of toluene?
…
2.Did [Mr Vijn intend] the toluene to be used to make methamphetamine or another controlled drug?
…
Note:
To be in possession of something, the defendant must:
1.        Know what the thing is.
2.        Know where the thing is.
3.Intentionally exercise control over the thing either alone or with another or others.
In our view, the Judge gave clear directions to the jury on the concept of possession and these were not inconsistent or delivered in a way which would cause any confusion.
Ms Smith then submitted that the jury returned inconsistent verdicts on Charges 7 and 8 and that no reasonable jury could have arrived at different verdicts on those two charges. The evidence of possession of toluene and the distiller was largely the same. They were dealt with together by Crown counsel in his opening address, but for some reason the jury returned different verdicts. Arguably the verdicts should have both been guilty or both not guilty.
The principles applicable to inconsistent verdicts were outlined by the Supreme Court in B (SC12/2013) v R:[18]
Logically irreconcilable verdicts may indicate that the jury’s thinking has gone awry in some fundamental way: in particular, the jury may have acted on a misunderstanding of the law or reached an illegitimate compromise. In such circumstances, a court may feel it necessary to intervene in order to ensure that justice is done, despite its respect for the jury’s function in the criminal justice process.
[18]B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261 at [67].
We are satisfied that the evidence with respect to the distiller was not the same as that relating to the toluene. The intercepted communications showed that Mr Vijn was attempting to locate a distiller. He sent a message to an unknown person saying “its dion’s uncle John can I come and pick up that machine you have for me” and then to the same number three minutes later “[t]he water maker”. These messages were followed later in the evening by a conversation between Mr Atkinson and Mr Vijn in which Mr Vijn asks whether Mr Atkinson “want[s] the [toluene]” “over the other [distiller]”. Mr Atkinson responds that “I want just the tolley”. An inference is available from these messages that Mr Atkinson wished to be provided with toluene, but did not require the distiller. We agree with the Crown that the evidence with respect to the toluene was arguably more concrete. It was referred to as “olly wolly”, “tolley” and “the proper one too and … it’s in labelled, proper one”. Another communication stated “I need a bit though” followed by Mr Vijn’s response “[t]hey’re twenty litre”. Later that night, Mr Vijn confirms to Mr Atkinson “Yeah its here. I think I’ve only got ten litres, is that enough?” Mr Atkinson responded “Oh. Ten litres, you said twenty.” These strands of evidence suggest that toluene was in close proximity to Mr Vijn. There is by contrast no direct evidence to place Mr Vijn in possession of the water distiller.
Ms Smith has been unable to make out any clear case of inconsistency. In our view, it was reasonable for the jury to find Mr Vijn guilty of possession of toluene, but not guilty of possession of the distiller.
Ms Smith further submits that the Judge, when giving his directions concerning circumstantial evidence and inferences, failed to sufficiently address the jury. Ms Smith submits that the case against Mr Vijn was largely circumstantial and could have supported a verdict of not guilty. She argues that if a favourable inference is properly and reasonably available on the evidence and cannot be excluded as possible by the jury, then the jury cannot properly be sure of guilt. Ms Smith submits this point was not adequately canvassed by the Judge in his summing-up, particularly when the matter was raised by counsel after the summing‑up was completed.
As we have already stated, the Judge gave an orthodox direction on circumstantial evidence and inferences in his summing-up noting the jury were entitled to draw inferences, but not to guess or speculate.[19] After the jury had retired to consider their verdict, the Judge noted, as a matter arising, the following:[20]
When the jury retired to commence their deliberations, Mr Holland on behalf of Mr Hines submitted because the Crown case was circumstantial in nature, a distinction needed to be drawn between the proper drawing of an inference and speculation, and hence I should direct the jury that where two inferences were of equal weight, they should draw the inference favourable to the defendant. I decline to do so on the basis of R v Puttick, and its progeny.
[19]R v Hines HC Auckland CRI-2015-004-7734, 9 March 2017 [Summing-up] at [93]–[97].
[20]At [277] citing R v Puttick (1985) 1 CRNZ 644 (CA); R v Hart [1986] 2 NZLR 408 (CA); Te Pout v R CA37/04, 24 August 2004 at [39]; and Wong v R [2014] NZCA 240 at [24].

Ms Smith accepted that to the extent that the Judge declined to give a redirection in terms disapproved by the Court of Appeal in R v Puttick and its progeny, the decision could not be faulted. However, Ms Smith submitted the Judge ought to have gone further in the case of Mr Vijn by insisting the jury should reach a position as contended for by the defence where it had a range of inferences available — some favourable and some unfavourable.
Where two or more inferences are possible based on the facts, this Court has confirmed that a trial Judge does not need to direct a jury to adopt the inference most favourable to the defendant.[21] A jury may conclude that only one inference is open on its assessment of the evidence or that one inference carries greater weight than the other, but speculation in aid of a defendant is no more permissible than speculation in aid of the prosecution.
[21]Hutchins v R [2016] NZCA 173 at [31].
The facts from which the Crown may seek to draw inferences need not be proved beyond reasonable doubt. This Court has discouraged excessive jury directions on the issue of proof by inference from circumstantial evidence.[22] This Court has also ruled that the concerns underlying directions on inferences can be met by a combination of the orthodox direction on circumstantial evidence and firm directions as to the need for proof beyond reasonable doubt.[23] We agree with the Crown that the Judge’s directions to the jury were entirely consistent with these authorities.
[22]R v Hart, above n 20, at [413], and [478]–[479]; and Cameron v R [2010] NZCA 411.
[23]Cameron v R, above n 22, at [85].
Ms Smith also submitted that the Judge should not have declined Mr Vijn’s application for dismissal of charges pursuant to s 147 of the Criminal Procedure Act.
The enquiry at the s 147 stage was not whether Mr Vijn was guilty. Rather, it was whether the evidence could reasonably lead to a verdict of guilty. While there is no direct evidence Mr Vijn ever met with Mr Atkinson, the intercepted communications, particularly in respect of the charge of possession of toluene, were still capable of proving possession. The admissible propensity evidence added weight to the evidential basis for the charges. We are therefore of the view that the Judge had a sound basis to conclude that there was sufficient evidence on Charges 7, 8 and 10.
We therefore dismiss Mr Vijn’s appeals against conviction.

Appeal against conviction: Mr Edwardson

Mr Edwardson was found not guilty of manufacturing methamphetamine but convicted of:
(a)supplying methamphetamine;
(b)procuring methamphetamine;
(c)possession of materials for the manufacture of methamphetamine;
(d)possession of methamphetamine for supply;
(e)participating in an organised criminal group;
(f)five charges of unlawfully possessing a firearm; and
(g)unlawful possession of ammunition.
Two grounds of appeal were advanced on behalf of Mr Edwardson:
(a)The jury verdicts in relation to the charges arising from the storage unit (the charges set out at [82](c) to (g) of this judgment) were unreasonable.
(b)The Judge erred in his summing-up by omitting to direct the jury on the relevance of evidence relating to the structure and hierarchy of the Head Hunters.
Mr Goodwin, senior counsel for Mr Edwardson, submitted that there was insufficient evidence against Mr Edwardson in relation to the storage unit charges and that the jury must have engaged in improper speculation about the meaning of intercepted communications relied upon by the Crown to support the charges against Mr Edwardson.
In our assessment, the following evidence could reasonably have been relied upon by the jury when convicting Mr Edwardson of the storage unit charges:
(a)Mr Edwardson was a prospect for membership of the Head Hunters and closely connected with other members of the core group against whom there was evidence of their roles in manufacturing and possessing methamphetamine for the purposes of supply.
(b)Several intercepted telephone conversations linked Mr Edwardson with the contents of the storage unit. In particular:
(i)On 28 May 2015 at 6.33 pm Mr Sadler and Mr Edwardson discussed the storage unit. During their conversation Mr Sadler asked Mr Edwardson “whose been going there? You?” Mr Edwardson replied “[n]ah just me”.
(ii)During the same conversation Mr Sadler asked Mr Edwardson whether the rent had “been fixed up”. Mr Edwardson assured Mr Sadler by saying “the bro’ll do it”. The Crown’s case is that the “bro” was Mr T Maaka.
(iii)On 4 June 2015, following the arrest of Ms Stone, Mr Edwardson told Mr Sadler that the police had “busted” the storage unit and that Ms Stone had been released “pending charges”.[24]
(iv)On 17 June 2015 Mr Sadler and Mr Edwardson discussed the absence of “hard evidence” in relation to the “black thing”. Three weeks later, on 8 July 2015 they discussed how things had gone quiet following the female being charged.
[24]See also conversations immediately after Ms Stone was charged outlined at [15] of this judgment.
In our assessment, the intercepted communications provided a proper evidential foundation for the Crown’s case that Mr Edwardson was involved in the management of the storage unit and had visited the unit, indicating he knew its contents and had control over the items in question. There was, accordingly, sufficient evidence for the jury to properly infer Mr Edwardson had possession of the contents of the unit.
Mr Edwardson’s second ground of appeal challenges the way Downs J directed the jury in relation to evidence given by Detective Senior Sergeant McNaughton about the hierarchy and structure of the Head Hunters.
The Judge properly explained to the jury the limited purpose of the Detective Senior Sergeant’s evidence and the need for them to put to one side any feelings of prejudice they may have because of the evidence that some of the defendants were involved with the Head Hunters. In particular, the Judge warned the jury the evidence about gang involvement could give rise to strong views or feelings and that the jury needed to put “that type of response entirely to one side. The mere fact one or more of the defendants is connected to a gang says nothing about guilt or whether the charges are proved.” [25]
[25]Summing-up, above n 19, at [2(b)–(a)]
That was an entirely appropriate direction in the context of this case. Nothing more was required. We are therefore satisfied there is no merit in this ground, or any of the grounds of Mr Edwardson’s appeal. We therefore dismiss his appeals against conviction.

Appeal against conviction: Mr Sadler

Mr Sadler was convicted of:
(a)manufacturing methamphetamine;
(b)possession of methamphetamine for the purposes of supply;
(c)possession of materials for the manufacture of methamphetamine;
(d)participating in an organised criminal group;
(e)five charges of unlawfully possessing a firearm; and
(f)unlawful possession of ammunition.
Mr Sadler appeals only his conviction in relation to the charge of manufacturing methamphetamine on the basis that there was insufficient evidence to support the conviction and that, accordingly, the jury’s verdict in relation to that charge was unreasonable.
Mr Mansfield, counsel for Mr Sadler, accepted Mr Sadler acquired 20 sets of Contac-NT from Mr Sun on 10 April 2015. He submitted, however, that the evidence did not disclose that Mr Sadler supplied it to the manufacturers or that it was used in the manufacture of methamphetamine. Mr Mansfield maintained there was no evidence of Mr Sadler being aware of or having any role in the manufacture of methamphetamine and that it was not sufficient if Mr Sadler had supplied pseudoephedrine because that would constitute supply of a precursor substance, not the manufacture of methamphetamine.
We start from the undisputed facts that Mr Sadler purchased a significant quantity of pseudoephedrine from Mr Sun on 10 April 2015 and that pseudoephedrine is an essential ingredient in the manufacture of methamphetamine.
We accept Mr Mansfield’s submission that Mr Sadler’s possession of pseudoephedrine would not by itself be sufficient evidence to uphold his conviction for the manufacture of methamphetamine. More evidence was required.
The further evidence that, in our assessment, warrants the upholding of Mr Sadler’s conviction for manufacturing methamphetamine can be reduced to the following four points:
(a)When Mr Sadler acquired the pseudoephedrine from Mr Sun he told Mr Sun that the product was “for the missus” and not for Mr Sadler. The Crown case was that “the missus” was a code for Mr Hines. The jury were entitled to accept the Crown’s argument that Mr Sadler acquired pseudoephedrine for Mr Hines.
(b)Between 10 April 2015 and 18 April 2015 Mr Sadler was engaged in discussions with members of the core group that could reasonably have been interpreted as evidence of preparations for a significant event. Mr Sadler told Mr Hines about the progress when he said “he’s still working on it” and on another occasion he talked with Mr Edwardson about what “pieces [were] missing”. We agree with the Crown that the intercepted communications provided a foundation for the inference Mr Sadler not only sourced the pseudoephedrine but that he knew about the impending manufacture and intended to assist in the manufacture by supplying the pseudoephedrine to Mr Hines or another person.
(c)Mr Sadler was a member of the Head Hunters and closely connected to Mr Hines and others against whom there was evidence of manufacturing and possessing methamphetamine for the purposes of supply. The jury were entitled to take into account the hierarchy and structure of the Head Hunters when assessing the Crown’s case that Mr Sadler reported to Mr Hines during the days leading up to 18 April 2015, although it was necessary for the jury not to allow that evidence to prejudice their assessment of the total evidence against Mr Sadler.
(d)When dismissing Mr Sadler’s application under s 147 of the Criminal Procedure Act, Downs J referred to the proximity between Mr Sadler’s acquisition of pseudoephedrine from Mr Sun and the date of the intended manufacture. In our assessment, that was a factor the jury could also legitimately take into account when it convicted Mr Sadler.
These four strands of evidence provided a foundation for the jury to infer that Mr Sadler was engaged in the manufacture of methamphetamine by knowingly supplying pseudoephedrine to Mr Hines or another person knowing and intending that it would be used to manufacture methamphetamine. Mr Sadler’s appeal against conviction is therefore dismissed.

Appeal against conviction: Mr F Maaka

Mr F Maaka appeals his conviction on one charge, namely the manufacture of methamphetamine on 18 April 2015.
The grounds of appeal advanced on Mr F Maaka’s behalf by Ms Kincade are, in essence, that there was insufficient evidence to convict Mr F Maaka and that a miscarriage of justice ensued when Downs J dismissed an application brought under s 147 of the Criminal Procedure Act to have the charge against Mr F Maaka dismissed.
As we have previously concluded there was sufficient evidence to enable the jury to conclude methamphetamine was manufactured at 36 Withers Road on the night of 18 April 2015 and/or the morning of 19 April 2015. We will focus solely on the evidence of Mr F Maaka’s involvement in the manufacture.
The evidence against Mr F Maaka was:
(a)He was a member of the chapter of the Head Hunters and closely connected with other members of the core group against whom there was evidence of manufacturing and possessing methamphetamine for the purposes of supply.
(b)Telecommunication polling data placed Mr F Maaka in the vicinity of 36 Withers Road for the entire period the Crown says methamphetamine was manufactured at that address.
(c)Intercepted communications showed Mr F Maaka passed a cellphone to Mr Atkinson at 1.23 am on 19 April 2015 at which point Mr Atkinson and Mr Vijn discussed the supply of items. Mr F Maaka received another call from Mr Vijn at 1.26 am during which Mr F Maaka told Mr Vijn and another person to “drop that thing off for us bro. The big bro’s … organised it”.
In our assessment, the evidence at trial was sufficient for the jury to accept the Crown case that Mr F Maaka was present during the manufacture of the methamphetamine at 36 Withers Road and that he was there as a representative of the Head Hunters to oversee the manufacturing process. For these reasons, we are also satisfied Downs J correctly concluded there was no basis for the charge against Mr F Maaka to be dismissed pursuant to s 147 of the Criminal Procedure Act.
Mr F Maaka’s appeal against conviction is therefore dismissed.

Appeals against sentence

In considering the appeals against sentence, we will first consider a feature that is common to the sentence appeals brought by four of the appellants, namely that Downs J erred when he concluded at least one kilogram of methamphetamine was manufactured on the evening of 18 April 2015 and/or the morning of 19 April 2015. We will then examine the appeals against sentence brought by each of the five appellants who challenged the sentences imposed by Downs J.

Quantity of methamphetamine manufactured

Mr T Maaka, Mr Sadler, Mr Atkinson and Mr F Maaka all appeal their sentences on the basis that Downs J erred in finding that at least one kilogram of methamphetamine was manufactured on the evening of 18 April 2015 and/or the morning of 19 April 2015. Although there was no direct evidence as to the exact quantity manufactured in that operation, Downs J drew an inference from the considerable circumstantial evidence that at least one kilogram must have been produced. He set out eight reasons for this conclusion in his sentencing decision.[26] The appellants submit that there was insufficient evidence for the Judge to find at least one kilogram of methamphetamine was manufactured. They submit that Downs J should have instead sentenced them on the basis of the 136.5 grams of methamphetamine actually found in the storage unit on 4 June 2015.
[26]Sentencing notes, above n 1, at [4].
Under s 24(1)(a) or the Sentencing Act 2002 a court is entitled to accept as proved any fact that was disclosed by evidence at the hearing or trial. The existence of a disputed aggravating fact must be proved beyond reasonable doubt.[27]
[27]Sentencing Act 2002, s 24(2)(c).
In R v Connelly, this Court elaborated on the impact of s 24(1)(a), holding that a trial judge is entitled to make findings of fact adverse to the defendant’s interests based on evidence at trial. It held:[28]
The Judge in a jury trial is effectively the thirteenth fact finder. Where, following a verdict(s) of guilty the Judge is required to sentence a prisoner the Judge is entitled, where the evidence supports it, to reach his or her own view of the facts relevant to sentencing provided that such view is not inconsistent with the verdict … . The Judge is not bound to accept the version of facts most favourable to the prisoner.
[28]R v Connelly [2008] NZCA 550 at [14] (intext citations omitted).
The Court of Appeal affirmed this statement in B (CA58/2016) v R, holding that “it is up to the Judge to determine the relevant facts but these must be within the bounds of the jury verdicts”.[29]
[29]B (CA58/2016) v R [2016] NZCA 432 at [76].
Mr Mansfield relied on R v Newton for the proposition that the sentencing judge is required to adopt the inference most favourable to the defendant.[30] In that case, the England and Wales Court of Appeal did in fact hold that the Judge was required to accept the defendant’s version of the facts so far as possible. However, in R v Newton the defendant was being sentenced following a guilty plea. The substantial dispute as to the facts at sentencing was dealt with only by submission. The Judge had heard no evidence. By contrast, here, Downs J had sat through a lengthy trial. Accordingly, pursuant to s 24(1)(a) of the Criminal Procedure Act, Downs J was entitled to accept as proved any fact that he considered to be disclosed by evidence at the trial, regardless of whether the defence advanced a more favourable alternative.
[30]R v Newton (1982) 77 Cr App R 13 (CA).
Further, the Judge gave the appellants the opportunity to adduce evidence on the issue, and gave an opportunity for all counsel to be heard on the issue before the first appellant was sentenced. None of the appellants wished to adduce further evidence, so at the sentencing hearing the issue of quantity was dealt with by way of submissions.[31] This Court has previously noted in a similar appeal that this is an appropriate approach where there has been a trial, at which all the relevant evidence was given, and where what is in issue is a question of inference.[32] Consequently, in this case, Downs J was entitled to sentence on the basis of any fact he found was proved beyond a reasonable doubt by the evidence adduced at trial. He was not required to prefer the inference most favourable to the appellants. The question is simply whether on the evidence available he was entitled to make the inference he made as to quantity, being that at least one kilogram of methamphetamine was manufactured.
[31]Sentencing notes, above n 1, at [3].
[32]Murray v R [2014] NZCA 189 at [60].
Many decisions have addressed this issue in the context of drug offending and in relation to findings of quantity for the purposes of sentencing. This Court provided guidance in the tariff case of R v Fatu, where it was said:[33]
[37] Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of the offending can be assessed depends very much on chance, the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence (for example, in the form of electronic intercepts).
[38] Obviously it is open to a sentencing Judge to make findings of fact as to the extent of past offending based on evidence, perhaps in the form of admissions, intercepted communications, cash movements, tick lists and chemical purchases. If there is no agreed summary of facts, such findings must be made in accordance with s 24(2)(c) of the Sentencing Act (that is, on the basis of the criminal standard of proof).
[33]R v Fatu [2006] 2 NZLR 72 (CA).
Similarly, in Baird v R, this Court followed R v Fatu and commented that that decision did not constrain sentencing on manufacturing charges to the actual amount that could be proven beyond reasonable doubt to have been manufactured.[34] Moreover, the starting point “reflects more than a straight arithmetical assessment”.[35]
[34]Baird v R [2012] NZCA 430 at [50].
[35]At [51].
Two key principles can be drawn from R v Fatu and Baird v R on the issue of drug quantities and sentencing. First, a starting point for sentencing drug manufacturing cases of this kind will be established with reference not only to quantity but also to the wider context of the manufacture. A starting point will often depend not only on the quantity proven to exist but also on factors like the scale and commerciality of the scheme. Secondly, in a great many cases the quantity will need to be determined on the basis of circumstantial evidence. The sentencing judge will often be required to ascertain a minimum amount it is certain beyond a reasonable doubt was manufactured, as an exact figure will rarely be obvious on the evidence.
Consequently, this Court has often upheld sentences based on quantities reached by inferences drawn from circumstantial evidence. In Murray v R, this Court accepted that a sentencing Judge was entitled to infer from the evidence at trial (with no disputed fact hearing) that the appellant had supplied 8.44 kilograms of methamphetamine notwithstanding that the appellant argued there was a possible scenario where she supplied only 1.6–two kilograms of methamphetamine.[36] The Court held the Judge was entitled to hold that the cash found was largely profit as a result of methamphetamine sales, and to assume a mark-up on the methamphetamine that was a conservative estimate according to the Crown’s expert witness.[37] Similarly, in Devries v R the Judge was entitled to sentence the appellant on the basis of manufacture of 1.5 kilograms despite the police only locating approximately 180 grams.[38] The Judge held that the cash and methamphetamine located, in combination with the sophistication of the laboratory and the quantity of other located chemicals required to manufacture methamphetamine, were indicators of a large-scale commercial operation.[39]
[36]Murray v R, above n 32.
[37]At [78]–[81].
[38]Devries v R [2014] NZCA 324.
[39]At [39].

In his sentencing notes, Downs J clearly set out the grounds for his conclusion that at least one kilogram of methamphetamine was made:[40]
(a)Manufacture occurred eight days after Mr Sun supplied 4.46 kilograms of Contac-NT to Mr Sadler. The figure is known because the intercepted communications refer specifically to 20 sets of Contac-NT.
(b)Mr Sun dealt in large amounts of that Contac-NT.
(c)Much time and effort were dedicated to this operation, in turn implying manufacture on a substantial scale. So too personnel vis‑à‑vis gang members.
(d)Mr Atkinson, an experienced cook, was enlisted as an independent contractor.
(e)There was nothing in the intercepted communications to imply dissatisfaction with his Mr Atkinson’s work.
(f)Conversion of 20 sets, or 4.4 kilograms, of Contac-NT to methamphetamine would typically produce between 900 grams and 1.3 kilograms of methamphetamine.
(g)136.5 grams of methamphetamine was found in a storage unit in early June 2015. It is likely the bulk of the methamphetamine was already disposed of. The Judge reached this conclusion notwithstanding the absence of specific communication in relation to distribution. It was also relevant the storage unit was rented on 18 April 2015, the same day as the manufacture.
(h)The case against Mr Sadler was that he was a party to manufacture largely because of his role in obtaining 20 sets of Contac-NT from Mr Sun.
[40]Sentencing notes, above n 1, at [4].
The primary challenges to Downs J’s conclusions as to quantity in light of the evidence are that the Judge:
(a)could not have reasonably concluded on the evidence available that all 20 sets of Contac-NT received on 10 April 2015 were used in the manufacture eight days later on 18 April 2015;
(b)could not have reasonably concluded on the basis of Mr Atkinson’s experience and the absence of evidence of complaint that the manufacture resulted in at least a typical yield when in fact the evidence on the manufacture suggested the organisation was amateurish;
(c)could not have reasonably concluded that the 136.5 grams of methamphetamine found in the storage unit was the residue of the manufacture from 18 April, and that the vast majority of the methamphetamine had already been distributed; and
(d)should have sentenced only on the basis of the 136.5 grams of methamphetamine found in the storage unit.
The submission that Downs J should have sentenced only on the basis of the 136.5 grams of methamphetamine found in the storage unit runs contrary to the position set out in Fatu v R and Baird v R. As the courts have repeatedly stressed, circumstantial evidence in relation to large commercial methamphetamine manufacture may well demonstrate that the scale of the manufacture was larger than the actual quantity of the drugs found. The scale of the operation was large enough to suggest that it produced far more than 136.5 grams. It is highly unlikely on the evidence that only 136.5 grams of methamphetamine was produced from 20 sets of Contac-NT.
The purchase of 20 sets of Contac-NT eight days before the manufacture gives rise to a reasonable inference that they were used for that manufacture. This inference is strengthened by the time, effort and number of personnel involved in the operation, as Downs J highlighted. Counsel for Mr T Maaka submitted that Downs J referred to time, effort and staff numbers in the abstract, without any reference to the factual basis for that finding. But Downs J did refer to a wide range of cases relating to similar operations and was well placed to draw such a comparison. As the Judge emphasised, Mr Atkinson was an experienced cook and it was reasonable to infer that he would produce at least as much methamphetamine as typically resulted from that quantity of Contac-NT.
Counsel for Mr T Maaka submitted that relying on the lack of evidence of complaint about Mr Atkinson’s work was a case of “finding evidence where there is none”. But that was not the Judge’s reasoning. The Judge held this was a sophisticated operation. An experienced cook was engaged. At least an average yield would no doubt have been expected. The Judge did not rely on the absence of evidence, but formed an inference on the basis of the evidence at trial that at least one kilogram would be expected to have been manufactured, and then pointed out that there was nothing to suggest this had not eventuated.
Counsel for Mr Atkinson also submitted that there was evidence that contradicted Downs J’s finding that there was nothing to imply dissatisfaction with Mr Atkinson’s work. Mr Chisnall pointed to Mr Vijn’s comment, cited by Downs J in the s 147 judgment, “[h]opefully this stuff is better, just sell it and go buy some harder stuff”. But as Downs J points out in the judgment, the comment was made in the context of Mr Vijn saying he was excited at the prospect of working with Mr Atkinson again.[41] There is nothing to suggest that when Mr Vijn expressed hope that the methamphetamine produced would be “better”, he meant in comparison to the methamphetamine produced earlier by Mr Atkinson. This can hardly be taken to mean, in the absence of any other complaint and given Mr Vijn was looking forward to working with Mr Atkinson, that a low yield was produced.
[41]Section 147 decision, above n 10, at [57].
Further, the alternative advanced by counsel for the appellants is not, in our view, an available inference on the evidence. It beggars belief to suggest that only 136.5 grams of methamphetamine was produced from 20 sets of Contac-NT, which expert evidence demonstrated would normally produce between 900 grams and 1.3 kilograms of methamphetamine. It is even more of a stretch to suggest that the entire yield was then left untouched in a storage unit for more than a month until located by police. The conclusion drawn by Downs J from the evidence was far more plausible than that advanced by the appellants.
There is however one matter raised by Mr Mansfield that we consider arguably points against the quantity accepted by Downs J. That is that a further manufacture was attempted by Mr Atkinson on 23 April 2015, only five days after the original manufacture and 15 days after the acquisition of the 20 sets of Contac‑NT. Mr Mansfield submits that it is reasonable to infer that a further quantity of Contac-NT was required for the later attempted manufacture. However, the police identified only one supplier of Contac-NT related to the operation, and there is no evidence of a further supply of Contac-NT by that supplier prior to 23 April 2015 other than that on 10 April 2015.
This gives rise to an alternative possible inference that not all 20 sets of Contac-NT were used in the manufacture on the evening of 18 April 2015 and/or the morning of 19 April 2015. However, we do not consider that this demonstrates error in the sentencing approach taken by Downs J for two reasons. First, the trial Judge is at a significant advantage having presided over the trial and heard first-hand the considerable evidence in this trial. Although Mr Manfield’s submission may be a possibility on the evidence, the Judge’s conclusion is nonetheless a reasonable and logical inference as to the quantity produced. Secondly, even if not all the sets of Contac-NT were used in the manufacture of the evening of 18 and/or the morning of 19 April 2015, this would not in our view have manifestly altered the sentence imposed. There is nothing to impeach Downs J’s conclusion that the manufacture was significant, and that the 136.5 grams located in the storage unit on 4 June 2015 was only the residue of that manufactured. At the very least the bulk of the Contac‑NT was used for the successful manufacture. This would have resulted in considerably more than 500 grams being produced. This easily places the defendants in the top band in R v Fatu, band four, for manufacture of 500 grams or more.
In sentencing the appellants, Downs J took a starting point for the appellants least involved in the scheme (the Maaka brothers) of 13 years’ imprisonment. This is the lowest starting point available in band four.[42] He emphasised that placement within the band depended not only on the amount of methamphetamine made, but on the appellant’s role in relation to the manufacture. As a result, the marginal difference in the amount produced if all 20 sets of Contac-NT were used as compared to the amount produced if only the bulk of the sets were used would, in our view, have had little impact on the sentence imposed. Therefore, even if a slightly lower quantity of methamphetamine was arguably produced, it is highly unlikely this would have had any impact on sentence. Any intervention by an appellate court on this basis would be mere tinkering.

Summary of our findings on the quantity of the methamphetamine manufactured

[42]Sentencing notes, above n 1, at [35] and [80].

It is true that Downs J was not permitted to draw inferences that relied on guesswork or speculation. But we do not consider that he did so. In our view, he was entitled to find that the 20 sets of Contac-NT were used in the manufacture, and that given the sophistication of the operation and the experience of the cook, the manufacture would have produced at least a typical amount of methamphetamine for the pseudoephedrine used. The Judge did not conclude that a quantity at the highest range of the typical yield was produced, but rather a quantity towards the lower end of normal. Even if the Judge should not have drawn an inference that all the Contac‑NT was not used for the manufacture, it is evident that at least the bulk was used. Such a conclusion would not have had a considerable impact on sentence given Downs J appropriately set a starting point with reference not only to the quantity produced but to the scale and commerciality of the operation, which is not in dispute.

Appeal against sentence: Mr Atkinson

Mr Atkinson was sentenced to 17 years’ imprisonment with a minimum period of imprisonment of seven years. The Judge adopted the starting point of 14 years’ imprisonment, advocated by Mr Atkinson’s counsel, for the manufacturing methamphetamine charge to which the Judge added two years’ imprisonment for the attempted manufacturing charge and one year’s imprisonment for his very bad previous criminal record.
As noted above, Mr Atkinson appeals against his sentence on the basis that the Judge erred in finding that at least one kilogram of methamphetamine was manufactured on the evening of 18 April 2015 and/or the morning of 19 April 2015. We have found that the Judge did not err. However, Mr Chisnall submits that the question remains whether the end sentence and the minimum period of imprisonment are manifestly excessive because of Mr Atkinson’s ill health and advanced age.
Mr Chisnall has made an application to adduce fresh evidence on appeal in the form of a letter from a gastroenterologist confirming that Mr Atkinson suffers from hepatitis C. The Judge, in his sentencing remarks, recorded that the pre‑sentence report referred to Mr Atkinson as suffering from hepatitis C, but commented that there was no evidence before him about that and certainly no evidence that Mr Atkinson’s incarceration would adversely affect any treatment in relation to it. The application to admit the gastroenterologist’s letter addresses that criticism by the Judge about lack of evidence. We therefore admit the letter and associated medical records as fresh evidence.[43]
[43]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 at [120].
The gastroenterologist confirms that Mr Atkinson has chronic hepatitis C, but records that Mr Atkinson refused interferon therapy 20 years ago, because he saw other people experiencing bad side effects. There are, however, newer treatments and the gastroenterologist comments that the best plan is to wait for funded treatment, which would be in the next 12 to 18 months. The good news, according to the gastroenterologist, is that Mr Atkinson’s fibroscan taken on 13 July 2017 showed minimal or no fibrosis — so there is no concern that his liver disease is progressing. The gastroenterologist indicated that he would not see Mr Atkinson until new treatment funded by PHARMAC was available. These circumstances do not suggest any particular discount for ill health is warranted.
Mr Chisnall submitted however that Downs J erred in not allowing a greater discount for Mr Atkinson’s age. At sentence Mr Atkinson was 72 years old. Accordingly, his counsel submitted that the sentence of 17 years’ imprisonment with a minimum period of imprisonment of 41 per cent amounts to “a life sentence”.
There are a number of cases where substantial discounts, sometimes of over 50 per cent, have been granted due to age and poor health. Such discounts are justified on the basis that the particular defendant is likely to suffer more from a sentence of imprisonment than other offenders. In R v Vershaffelt, this Court commented that this humanitarian principle found statutory expression in s 8(h) of the Sentencing Act 2002,[44] which provides that the Court:
must take into account any particular circumstances of the offender that mean that a sentence or other means of dealing with the offender that would otherwise be appropriate would, in the particular instance, be disproportionately severe; …
[44]R v Verschaffelt [2002] 3 NZLR 772 (CA) at [25].
However, in such cases the reduction has generally been attributed in large part to poor health rather than age alone.[45]
[45]See, for example, R v Gallagher (1993) 9 CRNZ 421 (CA), where a 70-year-old man with a variety of medical conditions was allowed a reduction of over 50 per cent on a sentence for indecent assault; and R v Lane CA184/81, 7 December 1981 where a tetraplegic man was allowed a discount of 66 per cent on sentence for drug supply charges due to the grievous nature of imprisonment.
Age alone may be a relevant factor considered in mitigation. However, that by no means inevitably leads to a discount for offenders. In M (CA91/2012) v R, this Court surveyed relevant case law and concluded that any education for age is “generally… limited” and heavily context dependent.[46]
[46]M (CA91/2012) v R [2013] NZCA 325 at [54].
If taken into account as a mitigating factor, advanced age generally results in a discount to the sentence or minimum period of imprisonment imposed rather than refusal to impose a minimum period of imprisonment at all. That approach was taken in R v Rhodes, where the defendant was sentenced for multiple charges relating to supply of methamphetamine and cannabis.[47] Heath J declined to give a discount from the starting point for Mr Rhodes’ age, and imposed a sentence of 14 years’ imprisonment with a minimum non-parole period of 50 per cent. Heath J added, however, that:[48]
a period in excess of that could well be justified but I have decided that based on your personal circumstances I should limit it to one of 50 percent of the end sentence.
[47]R v Rhodes [2016] NZHC 2729.
[48]At [32].
It would, of course, be open to a judge to decline to impose a minimum period of imprisonment where advanced age would make it disproportionately severe.[49] For example, no minimum period of imprisonment was imposed in R v Soles, a serious drug offending case, where the defendant was 73 years old, suffered from a neuropathy and angina, and used a wheelchair.[50] Similarly, in Huata v R, this Court upheld a refusal to impose a minimum period of imprisonment due to the offenders’ young ages (18 and 20).[51]
[49]Cases where mitigating factors personal to the offender weighed against the imposition of a minimum period of imprisonment include: Shaw v R [2016] NZCA 110 at [2]; Fleming v R [2011] NZCA 646 at [22]; and P (CA479/2015) v R [2016] NZCA 128.
[50]R v Soles [2014] NZHC 2665.
[51]Huata v R [2013] NZCA 470 at [32].
As to drug offenders in particular, examples of sentencing for older serious drug offenders demonstrate that the discount to be given for advanced age is heavily context-dependent. Generally, unless there are other health-related factors, discounts are either non-existent, as in the case of R v Williams,[52] or small. In R v McKenzie the defendant was 65 years old and was sentenced for one charge of conspiracy to manufacture methamphetamine.[53] He did not appear to suffer from any diagnosed condition, but Whata J referred to his vulnerable mental and emotional state as set out in a note from his general practitioner. Whata J allowed a discount of 10 per cent for his “age and emotional condition”.[54] No non-parole period was imposed.
[52]R v Williams HC Rotorua CRI-2009-063-5871, 22 July 2011 at [27].
[53]R v McKenzie [2013] NZHC 3351.
[54]At [38].
Downs J here explicitly considered the relevance of Mr Atkinson’s age at sentencing. However, he stressed that Mr Atkinson’s age needed to be placed in context. He referred to the length and seriousness of Mr Atkinson’s history of previous methamphetamine-related convictions, describing it as “very bad” with reference to this Court’s 2001 decision involving an appeal against sentence.[55] He noted that by Mr Atkinson’s age, even the most hardened offenders tended to have stopped committing crime. He concluded that Mr Atkinson was “exceptional”, and that there was no evidence to suggest he was “running out of steam” as counsel had submitted.[56] He held that Mr Atkinson continued to pose a risk to the safety of the community, and that parole eligibility after one third of his sentence would not be sufficient in light of the need for accountability, denunciation, deterrence and community protection. He stressed the seriousness of Mr Atkinson’s offending.[57]
[55]Sentencing notes, above n 1, at [112] citing R v Atkinson CA546/99, 19 April 2000 at [23].
[56]At [112] and [116].
[57]At [116].
A court is entitled to impose a minimum period of imprisonment if satisfied that the default non-parole period is insufficient for the purposes of holding the offender accountable for the harm done to the community, denouncing the conduct in which the offender was involved, deterring the offender or other persons from committing the same or similar offence and protecting the community from the offender. Downs J’s assessment roundly rejected that Mr Atkinson’s age ameliorated any of these concerns. While he accepted that age might reduce the relevance of these considerations for other offenders, he cannot be criticised for concluding that Mr Atkinson’s offending was serious and that his history demonstrates that he continues to pose a risk despite his age.
Mr Chisnall is incorrect in submitting that no allowance whatsoever was made for Mr Atkinson’s advanced age. Downs J noted that, but for Mr Atkinson’s age, he would have imposed a minimum period of imprisonment of 50 per cent of the total sentence. However, in light of Mr Atkinson’s advanced age, he imposed a minimum period of approximately 41 per cent of sentence.[58]
[58]At [118].
It is, accordingly, difficult for counsel to maintain that Downs J erred in refusing to allow a greater discount for Mr Atkinson’s age. He carefully weighed the surrounding circumstances. In our view, he was correct to conclude that Mr Atkinson differed from other offenders in showing no signs of reducing his criminal activity despite his age. We agree that he clearly continues to pose a risk to the community despite his advanced age. There is, accordingly, less justification for reducing his sentence than in a case like M (CA91/12) v R where the offending was historical.
It would have been open to Downs J to impose a larger discount for Mr Atkinson’s age than he chose to impose. However, in light of the case law and Mr Atkinson’s offending we do not consider it can be said that Downs J erred by only decreasing the minimum period of imprisonment by one and a half years. The discount imposed is in line with that imposed in sentencing drug offenders of a similar age, but without Mr Atkinson’s extensive history. We therefore dismiss Mr Atkinson’s appeal against sentence.

Appeal against sentence: Mr T Maaka

Mr T Maaka was sentenced to 16 years and two months’ imprisonment with a minimum period of imprisonment of seven years and three months. Downs J adopted a starting point of 13 years’ imprisonment for the manufacturing methamphetamine charge, which Mr T Maaka’s counsel accepted would be appropriate if the Judge concluded Mr T Maaka was a party to the manufacture of one kilogram of methamphetamine. The Judge then added three years’ imprisonment for the storage unit charges and two months’ imprisonment for his previous firearms convictions.
As noted above, Mr T Maaka also appeals against sentence on the basis that Downs J erred in finding that at least one kilogram of methamphetamine was manufactured on the evening of 18 April 2015 or the morning of 19 April 2015. Ms Maxwell-Scott submitted therefore that the starting point adopted was too high. Furthermore, the uplift for further offending was also too high and consequently the end sentence was manifestly excessive.
As we have already found, the Judge did not err in finding at least one kilogram of methamphetamine was manufactured. Consistently with our analysis of R v Fatu above at [110]–[123] of this judgment, Downs J’s conclusion a starting point of 13 years’ imprisonment, the lowest available for band 4 offending, cannot be faulted.
Ms Maxwell-Scott also submitted that the uplift of three years’ imprisonment for the balance of his offending was unnecessary on grounds that the items found in the storage unit were “part and parcel” of the manufacture offending, so that the criminality was sufficiently reflected in the 13-year starting point.
The Judge imposed an uplift of three years for Mr T Maaka. One of Mr T Maaka’s co-defendants, Mr Edwardson, was not involved with the manufacture, so his starting point was assessed with reference to the storage unit charges as stand-alone offending. Downs J adopted a starting point of four years for Mr Edwardson and then added two years for unrelated offending. The Judge noted precedent for a starting point of six years for similar possession charges, but held that this was not appropriate for Mr Edwardson given his “modest secondary role”.[59]
[59]At [69].
We are of the view that most of the items found in the storage unit, although associated with the manufacture of methamphetamine, were not part and parcel of the manufacture on the evening of 18 April 2015 and or morning of 19 April 2015. However, the Judge clearly held that the 136.5 grams of methamphetamine found in the van was the residue of the methamphetamine manufactured on the earlier dates. Unlike Mr Edwardson, Mr T Maaka was charged with that manufacturing. Accordingly, to increase his sentence due to possession of that same methamphetamine would amount to double counting. The remaining items, being firearms, equipment, precursor substances and ammunition, were separate although related offending. They did add to Mr T Maaka’s overall culpability.
We are of the view that the uplift of three years was too high compared to the four-year starting point adopted in respect of Mr Edwardson. It is appropriate to compare the two in order to avoid disparity in sentences between co-offenders.[60] We accept Mr T Maaka’s culpability for the storage unit offending was higher than that of Mr Edwardson given Mr T Maaka was more senior in the Head Hunters. However, in relation to Mr T Maaka, the Judge should not have included the possession of methamphetamine in the uplift. Further, a reduction for totality is needed to reflect the relationship between the storage unit charges and the earlier manufacture offending, in particular the charges for possession of materials in connection with the manufacture of methamphetamine. Methamphetamine manufacture almost always includes significant commerciality and, accordingly, precursor materials and equipment.[61] To some extent this is inherent in the penalty for manufacture. The important question is the extent to which the items found in the storage unit, excluding the methamphetamine, added to Mr T Maaka’s overall culpability. We consider an uplift of 18 months adequately reflects his additional culpability.
[60]Sentencing Act, s 8(e); and R v Lawson [1982] 2 NZLR 219 (CA) at 223.
[61]R v Fatu, above n 33, at [5] and [42]; and U (CA236/2010) v R [2010] NZCA 464 at [24]–[25].
We allow Mr T Maaka’s appeal against sentence and substitute a term of 14 years and eight months’ imprisonment, with a minimum period of imprisonment of six years and seven months.

Appeal against sentence: Mr Vijn

Mr Vijn was sentenced to four years and three months’ imprisonment on four charges: three of possession of precursor substances and one of possession of materials in connection with the manufacture of methamphetamine. Downs J adopted a starting point of three and a half years’ imprisonment and applied an uplift of 12 months’ imprisonment for his significant previous criminal record before deducting three months for restrictive bail conditions prior to trial.
Mr Vijn appeals against sentence on the basis that the starting point adopted by the Judge was too high, that the uplift of 12 months’ imprisonment for his previous convictions was excessive and that he received insufficient credit for restrictive bail conditions.
Ms Smith referred to three authorities where a lower starting point was adopted and submitted.[62] In one of those decisions, R v Haywood, Asher J referred to three factors relevant to sentence:[63]
(a)how close the materials were to constituting a complete laboratory;
(b)was there any sign that the laboratory had been used; and
(c)the degree of control.
[62]Wilson v R [2011] NZCA 197; R v Saundercock HC Wellington CRI-2005-085-3489, 8 February 2007; and R v Haywood HC Hamilton CRI-2006-019-5815, 20 February 2009.
[63]R v Haywood, above n 62, at [9].
While of significance in some cases, there can be no rigid formula for assessing an appropriate staring point. Downs J here reasoned as follows:[64]
I adopt a starting point of three and a half years’ imprisonment in relation to all charges because you possessed a large quantity of toluene, a multitude of things for use in connection with methamphetamine and manufacture, and all in circumstances of close proximity to actual manufacture.
[64]Sentencing notes, above n 1, at [93].
The Judge’s assessment of the factual circumstances cannot be faulted. We are of the view that the starting point adopted was within the available.
As to the 12-month uplift for previous offending, the Judge recorded Mr Vijn’s history as follows:[65]
You have a significant criminal history. In 2002 you possessed methamphetamine. In 2005 you graduated to manufacturing that drug and possessing equipment with the intention it be used to make methamphetamine. You twice manufactured methamphetamine in 2006, and you committed separate batches of possessing equipment with the requisite intent. You were sentenced to a term of three and half years’ imprisonment in 2007 for that offending. In 2011 you made more methamphetamine and possessed related equipment, materials and precursor substances. The sentencing Judge considered your offending to be commercial in nature, but you avoided prison.
[65]At [94].
We note that the only sentence of imprisonment previously received by Mr Vijn was the sentence of three and half years’ imprisonment imposed in 2007 for manufacturing methamphetamine on two separate occasions in 2005 and 2006.[66] The relative shortness of the term of imprisonment imposed in 2007 indicates that the amount of methamphetamine manufactured was not in large commercial quantities. Mr Vijn was clearly addicted to methamphetamine and has completed a residential and alcohol treatment programme at Odyssey House. In those circumstances, we are of the view that an uplift of one years’ imprisonment, the equivalent of 28.5 per cent of Mr Vijn’s only previous sentence of imprisonment imposed 10 years ago, is excessive and disproportionate. We are of the view that an uplift of six months’ imprisonment would have been all that was warranted.
[66]R v Vijn HC Auckland CRI-2006-004-16616, 23 February 2007.
This can be contrasted with Mr Atkinson’s case. Mr Atkinson also received an uplift of one years’ imprisonment for his previous record, which included sentences of six years’ imprisonment in 1981, 10 years’ imprisonment in 2000, three months’ imprisonment in 2006 and four years and three months’ imprisonment in 2002, all on drug-related offending. In Mr Atkinson’s case, the Judge rightly considered that a 12-month uplift was appropriate having regard to the nature, frequency and seriousness of Mr Atkinson’s previous offending. Mr Vijn’s significant record comes nowhere close to that of Mr Atkinson. Consistency in sentencing is important.[67] Mr Vijn’s uplift should be reduced to six months.
[67]Sentencing Act, s 8(e).
Finally, counsel for Mr Vijn submitted that a discount of three months for restrictive bail conditions was insufficient. We are not persuaded that the Judge erred in this respect. Although initially bailed on a 24-hour curfew, Mr Vijn was allowed out to work. Counsel acknowledges that thereafter his bail conditions did not seem that restrictive as there were notings of him being stopped by police out and about. Furthermore, Mr Vijn had numerous breaches of bail when he was found not to be present at the bail address during an after-hours curfew.
In conclusion, we allow Mr Vijn’s appeal against sentence and reduce his sentence to one of three years and nine months’ imprisonment.

Appeal against sentence: Mr Sadler

Mr Sadler was sentenced to 18 years and two months’ imprisonment with a minimum period of imprisonment of nine years. The Judge adopted a starting point of 15 years’ imprisonment for the manufacturing methamphetamine charge to which he added three years’ imprisonment for the storage unit charges and two months’ imprisonment for his previous conviction for aggravated robbery in which a firearm was used.
As noted above, Mr Sadler also appealed against sentence on the basis that Downs J erred in finding that at least one kilogram of methamphetamine was manufactured on the evening of 18 April 2015 and/or the morning of 19 April 2015. As we have already discussed, our view is that Downs J made no such error. The starting point of 15 years’ imprisonment was therefore appropriate considering Mr Sadler’s role in the operation and the quantity of methamphetamine produced. He sourced 20 sets of Contac-NT from Mr Sun intending they be used for the manufacture of methamphetamine. He reported to Mr Hines on the progress of the then-upcoming manufacture and performed some lesser role assisting in the location of equipment.
Mr Mansfield also submitted the three-year uplift for the balance of Mr Sadler’s offending was too high.
The comments made in relation to Mr T Maaka’s uplift for the same offending are also relevant here. No uplift was appropriate to reflect the possession of the methamphetamine that Downs J held was the product of the earlier manufacture; any such uplift would be double counting. In light of the starting point adopted for Mr Edwardson’s stand-alone conviction for the same offences, an appropriate uplift is 18 months.
Accordingly, we allow Mr Sadler’s appeal against sentence and reduce his final sentence to one of 16 years and eight months’ imprisonment, with a minimum period of imprisonment of eight years and four months.

Appeal against sentence: Mr F Maaka

Mr F Maaka was sentenced to 13 years’ imprisonment with a minimum period of imprisonment of five years, two months and two weeks. The Judge adopted a starting point of 13 years’ imprisonment for the manufacturing methamphetamine charge to which no adjustments were made because Mr F Maaka was convicted only of the one charge and there were no mitigating features available to discount the sentence.
As noted above, Mr F Maaka appeals against sentence on the basis that the Judge erred in finding that at least one kilogram of methamphetamine was manufactured on the evening of 18 April 2015 and or the morning of 19 April 2015 and, accordingly, the sentence was manifestly excessive. We have found the Judge did not err in this respect. Ms Kincade submitted that nevertheless the period of imprisonment imposed was manifestly excessive given Mr F Maaka’s alleged role. In particular, he should not have been given the same starting point as his brother — Mr T Maaka, given the difference in their alleged roles. Further, counsel submitted insufficient regard was given Mr F Maaka’s lesser role in imposing the minimum period of imprisonment.
The Judge found that Mr F Maaka supervised the manufacturing process. He was present when the drug was manufactured. He was there as a representative of the Head Hunters and as supervisor. He was concerned about operational security in the early hours of 19 April 2015. He expressed concern that more was being said on the phone than necessary. Mr F Maaka was, therefore, clearly a party to the manufacture of methamphetamine and a starting point of 13 years’ imprisonment in relation to the manufacture of methamphetamine was warranted.
The Judge found that Mr F Maaka’s brother, Mr T Maaka, was also present when the methamphetamine was being manufactured, at least for a period. He too provided some supervision of the manufacturing process, but the Judge noted that Mr T Maaka had another role as well — in providing a cellphone dedicated to the offence and used by Mr Atkinson. For reasons of operational security, Mr T Maaka then destroyed the phone. We cannot see any particular reason why the brothers’ roles should be differentiated to the extent that a different starting point is warranted. Mr F Maaka’s role was, as the Judge noted, “not unimportant”.[68]
[68]Sentencing notes, above n 1, at [80].
As to the minimum period of imprisonment, the Judge was satisfied that Mr F Maaka played a lesser role than Mr Atkinson and Mr Sadler. Mr Atkinson and Mr Sadler were assessed as more culpable by the Judge. He imposed a minimum period of imprisonment of approximately 50 per cent in respect of Mr Sadler and would have imposed a minimum period of imprisonment of 50 per cent on Mr Atkinson also, except for the fact of Mr Atkinson’s age. As for Mr F Maaka’s brother, the Judge imposed a minimum period of imprisonment of 45 per cent, which he thought reflected Mr T Maaka’s dual role in the manufacturing operation. The minimum period of imprisonment imposed on Mr F Maaka was 40 per cent, which accords with Mr F Maaka’s role in the hierarchy of the Head Hunters and the slightly different and lesser role played by him. The Judge cannot be criticised for differentiating between the various appellants in this way. He had the benefit of hearing the case and all the evidence presented to the jury and was in the best position to make such an assessment. We therefore dismiss Mr F Maaka’s appeal against sentence.

Result

The appeals against conviction are dismissed.
Mr Atkinson’s application for leave to adduce fresh evidence on appeal is granted.
Mr T Maaka’s appeal against sentence is allowed. The sentence imposed in the High Court is quashed and replaced with a sentence of 14 years and eight months’ imprisonment with a minimum period of imprisonment of six years and seven months.
Mr Vijn’s appeal against sentence is allowed. The sentence imposed in the High Court is quashed and replaced with a sentence of three years and nine months’ imprisonment.
Mr Sadler’s appeal against sentence is allowed. The sentence imposed in the High Court is quashed and replaced with a sentence of 16 years and eight months’ imprisonment with a minimum period of eight years and four months.
Mr Atkinson’s and Mr F Maaka’s appeals against sentence are dismissed.

Solicitors:
Crown Solicitor, Auckland for Respondent

[2017] NZCA 618

20 December 2017