Haarhaus v R

[2010] NZCA 41

IN THE COURT OF APPEAL OF NEW ZEALAND

CA516/2009
[2010] NZCA 41

BETWEENROBERT BENJAMIN HAARHAUS

Appellant

ANDTHE QUEEN

Respondent

Hearing:16 February 2010

Court:William Young  P, Wild and Heath JJ

Counsel:C B Wilkinson-Smith for Appellant

M D Downs for Respondent

Judgment:1 March 2010 at 11.30 am

JUDGMENT OF THE COURT

The appeal against sentence is dismissed

____________________________________________________________________

REASONS OF THE COURT

(Given by Heath J)

The appeal

[1]        Following a disputed fact hearing, after pleas of guilty had been entered by Mr Haarhaus to serious drug charges, Stevens J sentenced him to a term of imprisonment of 12 years, with a minimum non-parole period of six years.[1]

[1]R v Haarhaus CRI-2007-004-18646, 24 July 2009.

[2]        Mr Haarhaus appeals against the sentence imposed.  His appeal is based on two grounds, namely that:

(a)Stevens J was wrong to find that the quantity of methamphetamine acquired by Mr Haarhaus was, at least, 700 grams (the quantity point); and

(b)Stevens J erred in finding that methamphetamine supplied by Mr Haarhaus to others was pure methamphetamine (the purity point).

[3]        On the quantity point, Mr Wilkinson-Smith, for Mr Haarhaus, does not contend that there was insufficient evidence on which Stevens J could base his finding.  Rather, he submits that, as a matter of process, it was a conclusion to which the Judge was not entitled to come.  Mr Wilkinson-Smith’s submission is based on the notion that the Judge was not entitled to find a quantity of supply beyond that apparently accepted by the Crown, in closing submissions, at the disputed fact hearing.

[4]        The purity point involves consideration of the way in which the Crown ought to allege and prove purity, for the purposes of a sentencing hearing on methamphetamine offences, in accordance with the guideline judgment in R v Fatu.[2]

Competing submissions

[2]R v Fatu [2006] 2 NZLR 72 (CA).

[5]        Mr Downs, for the Crown, submitted that the Judge was not bound by the Crown’s apparent position on the quantity point at the conclusion of the disputed fact hearing.  He submitted that, whatever view was taken by the Crown, it remained the responsibility of the sentencing Judge to reach his own conclusion.[3]

[3]See R v Mako [2000] 2 NZLR 170 (CA) at [15]-[17]; Chow v Director of Public Prosecutions (1992) 28 NSWLR 593 (CA) at 606 per Kirby P and Sheller JA; and Geoffrey Hall Hall’s Sentencing (looseleaf ed, lexisnexis) at [SA24.8(d)].

[6]        On the purity point, Mr Downs contended that there was an evidential foundation on which the Judge was entitled to act in finding (implicitly) that the methamphetamine supplied by Mr Haarhaus to others was, at least, 60 per cent pure.  The reference to 60 per cent purity comes from R v Fatu, in the context of what “the market would regard as P [ie, pure methamphetamine]”.[4]  Fatu is concerned with sentencing levels for offences involving pure methamphetamine.

Facts

[4]At [30].

[7]        We base our summary of the facts on the sentencing remarks of Stevens J which incorporated findings made after the disputed fact hearing.

[8]        In 2007, an investigation was commenced into drug dealing activities from an address in Kohimarama Road, Auckland.  The investigation techniques employed included electronic surveillance at the address, between 30 July 2007 and 28 August 2007, and visual surveillance of the property.  The operation focussed on the sale and distribution of the Class A controlled drug, methamphetamine, the Class B controlled drug MDMA (ecstasy), and the Class B controlled drug gamma-hydroxybutyrate (GHB). 

[9]        Mr Haarhaus occupied the Kohimaramara Road property.  On termination of the operation, on 28 August 2007, search warrants were executed.  Mr Haarhaus was arrested at the property.  Several associates were also arrested, either that day or later.  On 6 May 2009, Mr Haarhaus pleaded guilty to representative charges of supplying, offering to supply, possession for supply and conspiracy to supply the three categories of controlled drugs to which we have referred.

[10]       Following the disputed fact hearing,[5] Stevens J found that Mr Haarhaus acquired at least 700 grams (the metric equivalent of 25 ounces) of methamphetamine during the relevant period.  As Mr Haarhaus had admitted (by his pleas) dealing in that drug, the absence of any methamphetamine at the address, on execution of the search warrant, gave rise to a reasonable inference that those drugs had been sold.

[5]R v Haarhaus HC Auckland CRI-2007-004-18646, 4 June 2009.

[11]       Stevens J also concluded that Mr Haarhaus dealt in lots of multiple thousands of ecstasy tablets and on a wholesale level in relation to GHB.  On one particular transaction, Mr Haarhaus acquired 20 litres of GHB.  A 20 litre container was found to be near empty on the property when the operation was terminated and search warrants executed. 

[12]       The Judge, in sentencing, found that Mr Haarhaus was “a key figure” in the drug dealing operation, being responsible for the on-supply and distribution of the three classes of drugs “on a major scale”.[6]

Analysis

(a)  Introductory comments

[6]At [6].

[13]       The disputed fact hearing was convened after pleas of guilty were entered at a callover.  Lang J recorded disputes raised on behalf of Mr Haarhaus and, having been satisfied that the disputed aggravating facts were relevant to sentence, directed the disputed fact hearing to take place.

[14]       Prior to enactment of the Sentencing Act 2002 (the Act), there was no statutory provision for a disputed fact hearing, on sentence.  If facts likely to affect the sentence to be imposed were in dispute, sentencing Judges heard evidence and made appropriate findings in the course of the sentencing hearing.[7]  Section 24 of the Act implemented a recommendation of the Law Commission to codify rules relating to disputed fact hearings.[8]

[7]R v Bryant [1980] 1 NZLR 264 (CA) at 269-271.

[8]See Law Commission Proof of Disputed Facts on Sentence (NZLC R76, 2001).

[15]       Section 24(1)(a) entitles a Court to accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender.  In addition, the Court must accept as proved all facts, express or implied, that are essential to a plea of guilty, or a finding of guilty, on the relevant charge.[9]

[9]Sentencing Act 2002, s 24(1)(b).

[16]       Mr Wilkinson-Smith submitted that the “hearing” to which s 24(1)(a) refers could only be the hearing of the charges.  We do not accept that submission.  The term “hearing” is used disjunctively from the word “trial” in s 24(1)(a) and, in our view, may refer to evidence adduced at a disputed fact hearing, as well as any defended hearing in the District Court in its summary jurisdiction.  Necessarily, a disputed fact hearing precedes sentencing.  There is no rational basis for narrowing the ambit of evidence on which a Judge may act, when it has been given at a hearing during which a prisoner has the opportunity of calling evidence and cross-examining any Crown witness.

[17]       The existence of a disputed aggravating fact must be proved beyond reasonable doubt.[10]  For the purposes of s 24 of the Act, an “aggravating fact” is one that a prosecutor asserts to justify a greater penalty than might otherwise have been appropriate for an offence and the Court accepts is a fact that, if established, may have that effect on the ultimate sentence to be imposed.[11]

(b)   The “quantity” point

[10]Ibid, s 24(2)(c).

[11]Ibid, s 24(3).

[18]       The disputed fact hearing involved 17 challenges to specific facts alleged by the Crown in the summary of facts, on the basis of which Mr Haarhaus entered his plea of guilty.  All but three of the challenges related to charges involving methamphetamine.  The challenges concerned evidence of the nature of the substance with which Mr Haarhaus had been dealing and the quantity of the methamphetamine involved.

[19]       The hearing before Stevens J lasted three days.  A reserved judgment was delivered on 4 June 2009.  The Judge meticulously examined the evidence and the competing contentions of counsel on each issue, then made specific findings of fact on relevant points.

[20]       The Judge found that at least 700 grams of methamphetamine had been acquired by Mr Haarhaus.  That conclusion rested on acceptance of the Crown’s interpretation of certain statements and an inference that, because the 700 grams were not found when the premises were searched, that quantity, at least, had been sold.[12]

[12]At [71]-[72].

[21]       After the disputed fact hearing submissions were made by counsel.  Counsel for the Crown submitted:

Having now heard that evidence, Counsel for the Crown submit that the prisoner, on the lead offence of supplying a Class A controlled drug, falls between the top of Band 3 and Band 4 in R v Fatu.

The quantity of methamphetamine that sits on the cusp of bands three and four of Fatu is 500 grams.[13]

[13]R v Fatu at [34].

[22]       Mr Wilkinson-Smith placed much reliance on the Crown’s submission.  He submitted that it prevented the Judge from finding that any greater quantity had been supplied.  We do not accept that submission.  The role of a sentencing Judge is to find the facts on which to sentence and to impose a just sentence, having regard to the principles and purposes of the Act.

[23]       It is unclear to us precisely what counsel for the Crown intended by the submission to which we have referred.  In one sense, it was counter-intuitive.  If the Judge had not accepted the Crown’s contention that 700 grams had been obtained by Mr Haarhaus, the Judge could not have concluded that 500 grams had been sold.  There was no other evidence that, on its own, could have proved a quantity of 500 grams.

[24]       It had been plain from the outset that the Crown contended 700 grams had been sold.  This is clear from questions put to the detective in charge of the investigation, Detective Sergeant Sowter, by Mr Wilkinson-Smith.  For example:

And in a nutshell the prisoner has accepted about 68 odd grams of methamphetamine as being involved in his drug dealing and the Police or the Crown say about 700 grams?...Yes we say 700 grams.  I would have to work out the figure he accepts but I take it as 60 odd grams if that’s what it works out to be.

And the parts he doesn’t dispute which I suggest is 68 odd grams and that’s the part where the evidence is unequivocal that methamphetamine is being dealt with?....I am aware he accepts the two ounce deals with Mr Austin so that’s 56 grams, Ms Ngo and the 7 grams we located on her if there’s some other I would need to have a look but I accept around that 60 odd figure.

And I suggest the remaining approximately 630 grams the evidence is less clear cut but you say you can try and work it out by cross referencing or referral to other things located by the Police during the search warrants themselves?....No the 700 gram figure is clear cut in respect of when he advises a person he had 25 ozees and it had all gone so that 700 figure is derived from 28 x 25 ounces, I accept that the figure I have put in the schedule and the dealing over that period doesn’t equate to that total however you have to accept we don’t have every single communication with Mr Haarhaus and persons he was dealing with.

Would you accept the strongest evidence is the example where you intercept a conversation between two known parties, they use a recognised drug slang and then you actually intercept them and they have the stuff, it doesn’t get much stronger than that?...No that’s very solid evidence.

[25]       The position might have been different if the Crown had asserted in its summary of facts that only 500 grams had been supplied and that fact had not been put in issue at the disputed fact hearing.  But, for the reasons given in the authorities to which Mr Downs referred us at [5], we consider the Judge properly exercised his judicial function by determining the quantity based on the evidence he heard.  Just as a Judge is not bound by any upper limit suggested by the Crown for a sentence to be imposed, a Judge conducting a disputed fact hearing cannot be bound by the Crown’s submissions on the evidence given.

[26]       We find that the process was fair.  The question of quantity was in issue and, as demonstrated by the passage from Mr Wilkinson-Smith’s cross-examination of Detective Sowter, Mr Haarhaus had an adequate opportunity to challenge the evidence.  Mr Haarhaus could also have called evidence to contradict the detective’s, but he elected not to do so.

[27]       The quantity point fails.

(c)  The purity point

[28]       The purity point is based on observations made by William Young and Chambers JJ, delivering the judgment in this Court in R v Fatu:

[30] The sentencing bands which we propose are to apply by reference to the weight of what the market would regard as P; that is, a form of the drug in which the purity is of the order of, or exceeds, 60 per cent. In most cases, it will be relatively obvious, without expensive analysis, whether the drug involved is indeed P. The prosecution position as to this should be stated in the summary of facts. If disputed by the defendant, such dispute should be signalled, and the issue can then be determined by the Court (presumably after analysis of the drug). In cases where the purity levels are less than what would be expected of P, the sentencing response can be less stern.

[29]       Those observations must be read in the context of earlier comments in relation to the purity issue.  Immediately preceding [30], the Court said:

[27] We are of the view that objectivity and consistency are best served if the weight calculations proceed on a basis that is referable to purity. Where the Misuse of Drugs Act refers to quantities of drugs (as for presumption of supply), it refers to the actual quantities of the controlled drug concerned. So a mixture containing 12 g of a controlled drug and 6 g of baking soda is treated as 12 g and not 18 g of the controlled drug for the purposes of the Act. The position is the same in Australia and England. The reason for the words “whether or not contained in a substance, preparation, or mixture” in Schedule 5 is simply to make clear that if, say, the controlled drug were a very small proportion of the overall product, it is still a controlled drug.

[28] The material most recently supplied by the Crown includes a report from a forensic scientist, Ms Jennifer Sibley. This shows that methamphetamine is sold and used in the solid crystalline hydrochloride salt form – methamphetamine hydrochloride. The methamphetamine component of methamphetamine hydrochloride is 80 per cent, with the balance (20 per cent) being hydrochloride. Accordingly, the maximum purity of methamphetamine as sold on the street is 80 per cent. In practice, the purity of methamphetamine which is sold as “P” is usually in the range of 70 per cent – 80 per cent and almost always over 60 per cent. We note in passing that methamphetamine hydrochloride is itself a class A controlled drug under cl 4 of Schedule 1.

[29] A practical consideration that we must allow for is that the determination of the precise purity of a methamphetamine sample requires a time-consuming and costly process (and is far more expensive than what is required simply to determine the presence of the drug).

[30]       No allegation of purity was made in the summary of facts.  Nor was the drug referred to as P, as suggested in Fatu.[14] Rather, the purity fell for determination on the basis of inferences that could properly be drawn from available evidence.

[14]At [30].

[31]       In our view, there was evidence from which the Judge could draw an inference of purity of 60 per cent or more.  In summary:

(a)The amounts paid, in relation to the 25 ounces, are consistent with the product being what the market would regard as pure methamphetamine (ie P).

(b)While there were some complaints about quality, they related to a particular five ounces of methamphetamine which the Judge, at the disputed facts hearing, initially concluded Mr Haarhaus had acquired from a Mr Pitman-Tetai but later left out of account because Mr Pitman-Tetai had been acquitted at trial.[15]  So, the quality complaints were not material to the 25 ounces which formed the focus of the Judge’s sentencing approach.

(c)Stevens J accepted evidence given before him by Detective Sergeant Sowter.  The detective indicated that Mr Haarhaus preferred to deal in imported methamphetamine.  That drug is regarded as of higher quality than that manufactured locally.  That evidence also suggested that pure methamphetamine was being sold.

[15]R v Haarhaus at [77].

[32]       The combined effect of that evidence and the absence of any evidence from Mr Haarhaus or others to the contrary meant that it was open to the Judge to sentence on the basis that Mr Haarhaus was dealing in pure methamphetamine, as described in Fatu.

(d)  Conclusions

[33]       On the basis of the Judge’s finding that Mr Haarhaus supplied not less than 700 grams of methamphetamine, Mr Haarhaus fell within band four of Fatu.  That band deals with the supply of “very large commercial quantities” for which the starting point for sentence is between 10 years and life imprisonment.[16]

[16]R v Fatu at [34].

[34]       Stevens J took a starting point of 13 years imprisonment, in respect of the methamphetamine offending.  He added an uplift of two years to reflect the totality of all of the offending.  A credit of three years (20 per cent of the effective starting point) was provided for the relatively late pleas of guilty and the fact that Mr Haarhaus had been on restrictive terms of bail for some 13 months.  That reduced the end sentence to one of 12 years imprisonment.

[35]       Once it is accepted that findings on the quantity and purity points were open to the Judge, there can be no quarrel with the end sentence imposed.

Result

[36]       The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington for Respondent