Gage v The Queen
[2004] NZCA 250
•6 October 2004
IN THE COURT OF APPEAL OF NEW ZEALAND
CA149/04
THE QUEEN
v
PHILLIP BROWN GAGE
Hearing:23 September 2004
Coram:Anderson P
Baragwanath J
Randerson JAppearances: D G Slater for Appellant
B J Horsley for Crown
Judgment:6 October 2004
JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J
[1] Mr Gage was charged in the first and second counts of an 18 count indictment presented by the Crown Solicitor at Invercargill on a series of drug charges. They alleged
1… that… on the 31st day of October 2002 at Invercargill [he] offered to sell a class C controlled drug namely cannabis plant to Shannon Mokina Potau Reedy.
2… that… on the 31st day of October 2002, the 2nd day of November 2002 and the 7th day of November 2002 [he] and [Mr Reedy] conspired to defeat the course of justice by agreeing to pressurise S to assume sole responsibility for an offence committed jointly by S and [Mr] Reedy namely the possession of a class C controlled drug cannabis plant.
[2] All except one of the remaining counts alleged offending by Mr Reedy, that count alleging the supply of a class A controlled drug by a Mr Renton. One count contained a joint allegation against Mr and Mrs Reedy and another against Mr Reedy and “another person”.
[3] An initial trial was aborted as a result of the appellant’s illness. At the retrial he was found guilty on both counts. On 1 April 2004 he was sentenced to cumulative terms of 12 months imprisonment on the first count and nine months on the latter, a total sentence of 21 months imprisonment. He appeals against conviction and sentence.
Appeal against conviction
[4] The appeal against conviction is based on two grounds
a)that his trial should have been severed from those of his co‑accused;
b)the verdicts cannot be supported having regard to the evidence.
Severance
[5] Between June and December 2002 the police at Invercargill carried out an investigation known as Operation Greedy of which Mr Reedy was the primary target. Between 9 October and 17 December 2002 electronic surveillance of Mr Reedy’s telephone was carried out pursuant to interception warrants obtained from the High Court.
[6] Conversations intercepted between Mr Reedy and a number of Invercargill‑based suspects, including the appellant Mr Gage, led to their arrest on various drug related offences and informations laid against them in the District Court at Invercargill. Following depositions they were committed for trial in the High Court in Invercargill.
[7] Other conversations intercepted between Mr Reedy and a Mr Westrupp who lived in Gisborne led to his arrest on charges of conspiring with Mr Reedy to supply a Class A controlled drug and to produce or manufacture a Class B controlled drug. Informations were laid in the District Court at Gisborne. Following depositions Mr Westrupp was committed for trial in the High Court in Gisborne.
[8] On 15 May 2003 counsel for Mr and Mrs Reedy, Mr Renton, Mr Gage and two other accused Morris and Leah Reedy appeared before Chisholm J in the High Court at Invercargill. The Judge noted an indication that Mr Westrupp might consent to an order for transfer of his proceedings from Gisborne to Invercargill and their joinder to the Invercargill case.
[9] The following day Chisholm J considered an application by Mr Gage for severance. Mr Slater on his behalf submitted that there was no evidence that Mr Gage was part of the overall activity giving rise to the charges against other Invercargill accused; that it was only after the conclusion of the police operation that the allegations against him arose, primarily as a result of telephone tapping. He submitted that there was risk that Mr Gage would be tarred with the same brush as the co-accused.
[10] In an oral judgment of 16 May 2003 Chisholm J declined the application. He considered that it would be unrealistic to view the allegations against Mr Gage in isolation from the drug operation which formed its background. Moreover since Mr Reedy was central to the allegations both against both Mr Gage and against his co-accused, Mr Reedy would have to be involved in each. No prejudice justifying severance had been identified.
[11] On 10 July 2003 Harrison J in the High Court at Gisborne heard the Crown’s application to transfer Mr Westrupp’s proceeding to Invercargill. The Crown submitted that the case against him arose from electronic surveillance of an Invercargill man and a number of parties had been committed for trial there. So it was expedient in the interests of justice for there to be orders for transfer and joinder.
[12] Counsel for Mr Westrupp submitted that it was not conducive to justice for Mr Westrupp to be required to face a lengthy trial involving much evidence that did not relate to him and putting him to significantly greater expense than if he simply faced the two counts against him in Gisborne; and for him to be tried alongside persons accused of multiple drug offending charges with which he had no connection simply on the basis of two telephone conversations with Mr Reedy that gave rise to the two counts against him. He argued that it would not be difficult to extricate the evidence relating solely to Mr Westrupp to allow his trial to take place separately in Gisborne.
[13] In an oral judgment Harrison J considered that transfer would not be conducive to the ends of justice provided that Mr Westrupp did not challenge the admissibility of the evidence of the surveillance. On that basis the trial in Gisborne should not require more than one day. The application was dismissed.
[14] On 1 September 2003 at Invercargill counsel for Mr Gage again sought severance. He submitted that there had been a change of balance in the case as a result of pleas of guilty by some accused so that severance would now be conducive to the ends of justice. It was argued that the separate trial in relation to Mr Westrupp required as a matter of consistency that that of Mr Gage should be severed, that the allegations against Mr Gage were confined to the winding up phase of Operation Greedy, that evidence concerning Mr Gage could conveniently and appropriately be dealt with at a separate trial and that it would be onerous for Mr Gage to be required to stand trial with the other accused both because the evidence relating to him might occupy only half a day of a two week trial and because of his illness which was supported by a letter from his medical practitioner. The submission that there would be unfair prejudice against Mr Gage as a result of a joint trial was repeated.
[15] In an oral judgment Chisholm J considered that there remained a legitimate connection between the circumstances giving rise to the charges faced by the other accused and those against Mr Gage. He did not consider the fact of Mr Westrupp’s separate trial to be of particular significance and was of the view that there was no prejudice that could not be obviated by a proper direction. He declined the application.
[16] On 1 March 2004 at the commencement of the retrial the application for severance was renewed before Panckhurst J and dismissed. On 3 March the Judge gave reasons for his decision, adopting those given by Chisholm J on 16 May 2003. He added that the second count was one of conspiring with another accused to defeat the course of justice. He expressed the view that where there is a charge of conspiracy it is highly desirable that such charge be determined by a jury in relation to all of the alleged co‑conspirators. He held that principle to be well settled and of present application. The Judge was not satisfied that Mr Gage’s ill health constituted a sufficient reason for severance. In response to counsel’s concern that it might be difficult for him to function adequately throughout a two week trial he responded that he would if necessary resort to s 376(2) of the Crimes Act should there arise a genuine need for Mr Gage to be absent for medical reasons.
[17] In this Court Mr Slater repeated the submissions as to severance advanced in the High Court.
[18] On the point of severance we are satisfied that the decisions of the High Court were correct.
[19] On 30 October 2002 the police executed a search warrant at an Invercargill address occupied by the youth S referred to in count 2. During the search of the property seven pounds of high quality cannabis was located, most of it packaged in one pound lots ready for sale. S was present during the search and was charged with possession of cannabis for supply.
[20] On 31 October 2002, the day after the police search, there were two telephone discussions between the appellant and Mr Reedy. In the initial conversation the appellant and Mr Reedy discussed the cannabis seizure and the notion of S taking full responsibility for the possession of the cannabis even though it belonged to Mr Reedy and not to S. In a passage critical to the first count the following was recorded
GAGEYeh, ahm were you wanting those…… replaced because I can get some and bring it down or whatever, or sort it out down there.
SHANNON Ahm ahm yeh, no I’ll sit, sit tight.
GAGE Yeh yeh, no sweet as. I’ll, I don’t know, just, just show up with the coin or something.
The “those” referred to in the first line is an allusion to the seven pounds of cannabis that the police had seized.
[21] No exception was taken to the Judge’s directions on counts 1 and 2.
[22] Issues following conviction in this Court are whether in terms of s 385 of the Crimes Act 1961 the verdict of the jury cannot be supported having regard to the evidence or that on any ground there was a miscarriage of justice.
[23] On the point of severance, we are not satisfied that the interests of justice required that the appellant's trial be severed, nor, more pertinent to a substantive appeal, that a miscarriage of justice has been occasioned because the trial was not severed. In relation to count one the essential context of the offer to sell was the police seizure of Mr Reedy’s seven pounds of cannabis that was part of the subject matter of the trial against him. There was good reason for that context to be provided. As to the second count the reasons for the conspiracy alleged again required the jury to be informed of the context which included the incentives for the offence.
[24] It is by no means uncommon in conspiracy cases for there to be central major participants and others on the periphery. A joint trial enables the jury to form a true perspective of the conduct of the alleged participants and to render true verdicts. It is only in such extreme cases as R v Brown (1987) 3 CRNZ 132 (which was not a conspiracy case) that the interests of justice will tell against separate trial of joint charges. The authorities include R v Gillies and Jorgensen [1964] NZLR 709 and R v Assin [1966] 2 All ER 881.
[25] We therefore do not accept the severance submission.
Verdict cannot be supported
[26] In accordance with his instructions Mr Slater’s careful argument sought to attack the factual basis for the convictions on both counts 1 and 2. We called for and examined the full transcript of the conversations. We are satisfied that it was well open to the jury to find in respect of count 1 that there was a true offer by the appellant to supply cannabis to Mr Reedy and in respect of count 2 that the two men were party to the conspiracy alleged.
[27] The appeal against conviction is dismissed.
Sentence appeal
[28] At sentence Panckhurst J referred to the admirable references produced on behalf of the appellant whose leadership in Maori cultural programmes has been commendable. But it is well settled that there is little room for personal considerations when sentencing for drug related offences. The Judge had the responsibility for such factual findings as were required for sentencing purposes beyond the simple verdicts of the jury.
[29] As to the first count he formed the view that the appellant was offering to replace the whole seven pounds of cannabis that the police had seized and that the offer was not an idle one but one which the appellant had the ability to perform.
[30] The appellant’s prior convictions included cannabis dealing in 1994 for which a term of one year’s imprisonment was imposed, in July 2001 he was sentenced to concurrent terms of four years for possession of cannabis for supply and five years for possession of LSD for supply, and on 15 March 2002 he was sentenced to 15 months for possession of cannabis for supply.
[31] With that record the 12 months imprisonment on the first count was moderate.
[32] As to the second count the Judge considered that the appellant actively promoted the conspiracy to defeat the course of justice and took a leading role in orchestrating how this might be done including the expression of the ability to influence S’s treatment in jail.
[33] It was inevitable that the Judge should impose a cumulative sentence for the separate conspiracy count on which Mr Reedy had been sentenced to a similar term. Mr Slater submitted that in totality terms the combination of the 12 and nine month sentences was excessive. The appellant is now forty years of age. At the time of his offending he was a mature man, well aware of its potential consequences. The need for deterrence is paramount in this case and we are satisfied that the total term imposed was appropriate.
[34] The appeal also is dismissed.
D G Slater, Invercargill for Appellant
Crown Law Office, Wellington for Crown
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