Jack-Kino v The Queen
[2021] NZHC 1468
•21 June 2021
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
I TE KŌTI MATUA O AOTEAROA
TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE
CRI-2021-463-000051
[2021] NZHC 1468
BETWEEN GRAYSON JACK-KINO
Appellant
AND
THE QUEEN
Respondent
Hearing: 14 June 2021 Counsel:
B Nabney for appellant
J Sutton for respondent for respondent
Judgment:
21 June 2021
JUDGMENT OF KATZ J
[Appeal against conviction and sentence]
This judgment was delivered by me on 21 June 2021 at 2:30 pm
Registrar/Deputy Registrar
Solicitors: Pollett Legal Limited, Tauranga
Counsel: W T Nabney, Tauranga Chambers, Tauranga
JACK-KINO v R [2021] NZHC 1468 [21 June 2021]
Introduction
[1] On 15 March 2021, Grayson Jack-Kino appeared in the Tauranga District Court before Judge A-M J Bouchier for a Judge alone trial. Judge Bouchier found Mr Jack-Kino guilty of possession of methamphetamine, possession of methamphetamine for the purpose of supply and possession of a precursor substance, namely iodine.1 On 20 April 2021, Judge Bouchier sentenced Mr Jack-Kino to eight years and one months’ imprisonment on those charges.2
[2] Mr Jack-Kino appeals against his conviction on the charges of possession of methamphetamine for the purpose of supply and possession of a precursor substance. The issues raised in the conviction appeal are:
(a)whether the Judge erred in finding that Mr Jack-Kino knew that two bottles labelled “acetone” actually contained methamphetamine in liquid form; and
(b)whether the Judge erred in finding that Mr Jack-Kino was in possession of iodine for the purpose of manufacturing methamphetamine.
[3] In the event that his conviction appeal is unsuccessful, Mr Jack-Kino appeals the sentence imposed in respect of the lead charge of possession of methamphetamine for the purpose of supply. The issue is whether the Judge erred in finding that Mr Jack-Kino had a significant role in the intended supply of methamphetamine, and consequently adopted a starting point that was too high.
Background
[4] On 7 October 2019, Mr Jack-Kino was inducted into a one year sentence of home detention at an address in Matapihi, Mount Maunganui. The property comprised a number of dwellings and outbuildings. Mr Jack-Kino lived in a Portacom building roughly the size of a bedroom.
1 R v Jack-Kino [2021] NZDC 9501.
2 R v Jack-Kino [2021] NZDC 7160.
[5] On 11 February 2020, Mr Jack-Kino was at home when the police executed a search warrant. During the search, the police found approximately 15.4 kilograms of iodine prills3 in a cardboard drum that had a duvet stuffed into the top of it, two bottles marked “acetone” that contained 100.9 grams of methamphetamine in liquid form, and a small ziplock bag (located in a small cannister) containing methamphetamine in powder form.
[6] Mr Jack-Kino gave evidence at trial. He said that when he was fixing a fence on the property to prevent animals escaping he came across a cardboard drum wrapped in a blanket. He unwrapped it and discovered a black plastic bag inside the drum. Although a large green label saying “QIodine” was printed onto the cardboard, Mr Jack-Kino said he did not see that. The drum emitted a foul smell. Mr Jack-Kino says he put the drum in a cupboard to keep it out of reach of his young nieces and nephews, who were staying with the family for the Christmas holidays.
[7] Mr Jack-Kino claimed to have no knowledge that the cardboard drum contained 15.4 kilograms of iodine prills, nor that the two acetone bottles that were stored in the top of the drum contained methamphetamine in liquid form.
[8] During the police search, Mr Jack-Kino sat in the rear of a police car with the door open, talking to Detective Edgington. She noticed a small silver canister in the grass underneath where Mr Jack-Kino was sitting. Inside the cannister was a small ziplock bag of a white crystal material. Detective Edgington asked Mr Jack-Kino who the cannister belonged to. Her evidence was that Mr Jack-Kino said that it must have fallen out of his top. Detective Edgington then asked what was inside the cannister. Mr Jack-Kino replied that it was powdered acetone. Subsequently, however, Mr Jack-Kino offered a different explanation. He said that when he had opened the iodine drum he had seen two plastic bottles taped on top of it in a black bag. On the corner of the black bag was a white crystal powder:
… that is what is inside the silver canister, zip lock bag, I scratched it off, I thought it was meth. I tried a little bit of it to see what it did because I have never had meth before, it just gave me a drunken feeling and a mean headache.
3 A small, beadlike pellet.
[9] The powder from the cannister was subsequently tested and identified as methamphetamine.
Approach on appeal
The appeal against conviction
[10] Mr Jack-Kino has appealed against his conviction under s 232 of the Criminal Procedure Act 2011 (the “CPA”). This Court must allow the appeal if it is satisfied that the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice has occurred, or that a miscarriage of justice has occurred for any reason.4 A miscarriage of justice includes any error, irregularity, or occurrence in or in relation to or affecting the trial that has created a real risk that the outcome of the trial was affected, or has resulted in an unfair trial or a trial that was a nullity.5
[11] In Sena v Police, the Supreme Court held that the approach adopted in Austin, Nichols & Co Inc v Stichting Lodestar in respect of civil appeals conducted by way of rehearing is applicable to appeals under s 232(2)(b).6
The appeal against sentence
[12] Mr Jack-Kino appeals his sentence under s 244 of the CPA. The court must allow the appeal if it is satisfied that for any reason there is an error in the sentence imposed on conviction and a different sentence should be imposed.7
[13] In Tutakangahau v R, the Court of Appeal observed that sentencing is not a science and an appellate court will not generally interfere unless the end sentence was
4 Criminal Procedure Act 2011, s 232(2)(b)-(c).
5 Section 232(4).
6 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [32] citing Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
7 Section 250.
outside the range available to the sentencing judge.8 The primary focus of an appeal against sentence is the end sentence, not the particular components in isolation.9
Appeal against conviction
Did the Judge err in finding that Mr Jack-Kino’s evidence lacked credibility?
[14] The Judge found that key aspects of Mr Jack-Kino’s evidence (including his evidence as to how the cardboard drum came into his possession) lacked credibility:
[39] I have then heard from the defendant giving evidence on his own behalf. He mentions fixing a fence to keep animals in. He does not say what sort of animals, no animals can be seen in any of the photographs nor is there any evidence of repairs supposedly undertaken to the fence by him. He states that the item he said he found there in the treeline smelt of something dead and in the next breath he said chemical. Common knowledge is such in my view that it is clear that that description is at logger heads with the true nature of each smell, that is, something dead and something chemical. Neither of the two, in my view, in common knowledge are the same.
[40] He then stated that he had a young nephew and two nieces visiting over Christmas. The search warrant took place on 11 February well after Christmas and after the time that primary school children would be back at school, which is generally early in February.
[41] At first he said he found the items two weeks before the search by the police and subsequently stated that the items were put in the cupboard one week before the search and they were found about two days before that. Different timelines I note.
[42] Also, he stated that the cupboard was outside the Portacom when he first put the items in it. One could only comment that that is an unusual spot for a cupboard to be outside. He further stated that once the items were put in the cupboard that there was no smell. Given there is two different descriptions of the smell, that statement appears to be inherently incredible.
[43] Then there are the discussions with the police officer, which the police officer recorded, the differing statements made to the police from what was stated today in court and the so-called mishearings of the detective on the issues such as when he was speaking to the detective he referred to it as methamphetamine and also called it acetone. Further, the stating now of the issue of having two jumpers, one being his and one being his cousin’s and he does not know how this item came to be under the police car when having said so previously to the police officer.
8 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 (CA), (2014) 27 CRNZ 291 (CA)
at [35]-[36].
9 D (CA 197-2014) v R [2014] NZCA 373 at [18].
[44] Therefore, in my view, his evidence before the Court is inherently and totally incredible and I reject it as having any veracity before me today. Quite clearly, the physical possession of the items involved in the three charges is quite clear. They have been found in the place where he was residing. It is the knowledge of possession and control that is the key issue.
[45] From all of the subjective evaluation of the evidence that has been given by both the police and the defendant and my finding as to his credibility or rather lack thereof, I am of the clear belief that the prosecution has proven that he knew the items were there, he was willing to exercise control over the items, he had the intent to do so and also that he had the knowledge that the items were a controlled substance and a controlled drug.
[15] Mr Nabney made a number of criticisms of the Judge’s reasons for making an adverse credibility finding against Mr Jack-Kino, including that he was not questioned by either the prosecutor or the Judge on such issues as what sort of animals he was trying to keep in when he fixed the fence. Further, other inconsistencies referred to by the Judge (such as the odour omitted by the cardboard container) were minor, or potentially not even inconsistencies at all.
[16] The respondent submitted that while the facts referred to by the Judge are quite specific, they are simply examples used to explain her Honour’s reasoning that Mr Jack-Kino’s account lacked detail. Detail is one factor that a Judge is entitled to consider when determining whether a witness is giving a credible account of the events in question. Although Mr Nabney criticises the Crown and the Court for failing to question Mr Jack-Kino on these details, counsel for the respondent noted that Mr Nabney also failed to question Mr Jack-Kino on these issues. For example, Mr Nabney could have elicited more details when examining Mr Jack-Kino about his repairs of the fence. The Judge may well have inferred from the lack of detail that it was not in the defence’s favour to elicit answers to these questions.
[17] I have carefully reviewed the evidence that was before the lower court and, in my view, the Judge’s adverse credibility finding in respect of Mr Jack-Kino’s evidence is well supported by the totality of the evidence.
[18] First, there were a number of inconsistencies between Mr Jack-Kino’s evidence in court and what he told Detective Edgington at the time of the search. Mr Jack-Kino generally denied having made those aspects of his earlier statements that were inculpatory, claiming that the detective must have “misheard” him. For example, he
denied having stated that “I opened it [the cardboard container] up and there were two plastic bottles taped on the top of it, in a black bag” and said that the detective must have misheard him. He also denied telling Detective Edgington that he had tried a crystal substance scraped off the black plastic bag, that he thought was methamphetamine. He denied saying that he “felt drunk and got a mean headache” after trying the crystal substance. Mr Jack-Kino also denied having referred to the cardboard container as the “iodine cardboard container” (emphasis added) and said that he did not know that the cardboard container contained iodine.
[19] It is inherently implausible that the detective (who made contemporaneous notes) could have somehow “misheard” Mr Jack-Kino make several quite specific inculpatory statements, while apparently accurately recording those parts of Mr-Jack-Kino’s statement that were not inculpatory. Similarly, Mr Jack-Kino’s attempts to distance himself from the small cannister containing methamphetamine found in the grass adjacent to the patrol car were unconvincing. He claimed in his evidence in court (for the first time) that he had two jerseys with him at the time, one of which was his cousin’s, with the implication being that the cannister may have fallen out of his cousin’s jersey. This evidence does not have the ring of truth. Indeed, in the photo of Mr Jack-Kino sitting in the police vehicle he does not appear to be wearing a jersey at all, which is perhaps not surprising given the time of year (February).
[20] I also note that the suggestion that the cannister might have fallen out of Mr Jack-Kino’s cousin’s jersey is inconsistent with Mr Jack-Kino’s contemporaneous statement to Detective Edgington that the substance found in the cannister was a crystalline substance he had scraped off the black plastic bag inside the cardboard iodine drum, which he believed to be methamphetamine.
[21] Overall, the evidence strongly supports the inference that Mr Jack-Kino deliberately dropped or placed the cannister where it was found, to distance himself from it because he knew what was inside the cannister (methamphetamine).
[22] Numerous other aspects of Mr Jack-Kino’s evidence were also implausible, including that he did not see the large writing on the side of the cardboard container stating “QIodine”, despite stating that he had unwrapped the container.
[23] It also seems inherently improbable that an unknown person or persons would abandon or store a significant quantity of methamphetamine and a precursor substance (iodine) with a combined value of between $125,000 and $155,000 outside in the open under some rubbish, or that Mr Jack-Kino would move a container containing an unknown chemical substance with a “really foul smell” into his small bedroom, rather than contact the authorities or dispose of it in some other manner.
[24] Further, as the Judge noted, there appears to be a timing mismatch in that the reason given for moving the chemicals into his bedroom was that Mr Jack-Kino found them (a week or so before the search on 11 February) at a time when he had nieces and nephews over for the Christmas holidays and he wanted to keep the substance away from them. As the Judge noted, February is well after Christmas, and primary school children are usually back at school by early February.
[25] Overall, there were multiple strands of evidence that, considered together, supported the Judge’s conclusion that key aspects of Mr Jack-Kino’s evidence, including his explanation for how the methamphetamine and iodine came into his possession, lacked credibility. It was therefore necessary for the Judge to consider all of the other Crown evidence to determine whether the Crown had proved its case beyond reasonable doubt.
Did the Judge err in finding that Mr Jack-Kino knew that the bottles labelled “acetone” contained methamphetamine?
[26] Mr Nabney submitted that there was no evidence to support the Judge’s finding that Mr Jack-Kino knew that the bottles labelled acetone contained methamphetamine.
[27] I disagree. First, given the Judge’s rejection of Mr Jack-Kino’s explanation as to how he came into possession of the cardboard iodine drum, there is simply no plausible explanation for the presence of the substances in his bedroom. Obviously, this in itself does not prove the necessary mens rea. However, the following evidence,
in my view, provides further strong support for the inference that Mr Jack-Kino knew there was methamphetamine in the bottles labelled acetone.
[28] As noted previously, during the search Detective Edgington spoke to Mr Jack-Kino in a parked patrol car. Mr Jack-Kino was sitting in the rear seat with the door open. Just below where he was sitting, Detective Edgington located a small silver cannister. Inside the cannister was a small ziplock bag containing a white crystal material. When she asked “whose is that?” Mr Jack-Kino said “it must have fallen out of my top”. He initially claimed the substance was powdered acetone, but later stated that:
I opened it [the cardboard iodine container] up and there were two plastic bottles taped on top of it in a black bag, I thought they were chemicals with the tape on the lids, there is a parcel that was inside that black bag also that was on top of the iodine container, cardboard container. If you look at the black bag the corner of it has white crystal powder, that is what is inside the silver canister, zip lock bag. I scratched it off, I thought it was meth. I tried a little bit of it to see what it did because I have never had meth before, it just gave me a drunken feeling and a mean headache.
[29] Mr Jack-Kino did not, however, alert the police to what he claims to have “found” but instead put the remainder of the crystalline substance he had scraped off in a small ziplock bag in a cannister that he had on his person at the time of the police search. The fact that he did this, and subsequently attempted to distance himself from the cannister, supports the inference that he knew what the crystal substance was. It is not plausible that the cannister simply “fell” out of Mr Jack-Kino’s top and onto the grass while he was sitting in a police patrol car talking to a detective. Rather, the necessary inference is that Mr Jack-Kino knew that the substance in the cannister (scraped from the black bag the acetone bottles were in) was methamphetamine. That is why he was trying to dispose of it.
[30] A further strand of circumstantial evidence that supports the inference that Mr Jack-Kino knew there was methamphetamine in the bottles labelled acetone is that the bottles were inside a larger cardboard container clearly labelled iodine, a necessary precursor substance for the manufacture of methamphetamine.
[31] There is also some (limited) evidence that other precursor substances were present. Detective Brown gave evidence that he found what he believed to be
phosphoric acid at the scene. Phosphoric acid is one of the three typical precursor materials used in the manufacture of methamphetamine. Detective Brown pH tested the substance and found it to be acidic. ESR, however, were unable to identify the substance. This strand of circumstantial evidence must therefore carry limited weight, given the lack of definitive identification of the substance.
[32] When viewed in totality, however, the evidence clearly supports the Judge’s finding that Mr Jack-Kino knew that the bottles labelled acetone contained methamphetamine.
Did the Judge err in finding that Mr Jack-Kino was in possession of iodine for the purpose of manufacturing methamphetamine?
[33] Mr Jack-Kino was charged with the possession of a precursor material (iodine) that is being capable of being used to manufacture methamphetamine with the intention that that material be used to manufacture methamphetamine.10
[34] The Judge did not expressly address the requirement that Mr Jack-Kino had possession of the iodine for the purpose of manufacturing methamphetamine. That finding, however, must be implicit in the Judge’s verdict on that charge.
[35] It is not in dispute that iodine is capable of being used to manufacture methamphetamine, and there was expert evidence to that effect. Mr Nabney submitted, however, that there was no evidence to support a finding that Mr Jack-Kino was in possession of iodine with the intention that that material be used to manufacture methamphetamine. He noted that there were no other chemicals or equipment present that could be used to convert the iodine into methamphetamine.
[36] Unlike methamphetamine, it is possible to possess iodine for quite legitimate purposes, for example to fortify food products. The law therefore requires the Crown to prove that Mr Jack-Kino possessed the iodine for the purposes of being used in the manufacture of methamphetamine.
10 Misuse of Drugs Act 1975, s 12A(2)(a) and (3)(b).
[37] The Judge did not expressly address this issue. In my view, however, the sheer quantity of iodine points strongly towards Mr Jack-Kino possessing it for the purpose of manufacturing methamphetamine. There are very limited legitimate reasons why an individual might possess 15.4 kilograms of iodine. Here, Mr Jack-Kino’s explanation for how the iodine came into his possession was implausible, for the reasons outlined above. Further, the fact that a significant quantity of methamphetamine was also stored on top of the iodine in the iodine container, and that methamphetamine crystals were scraped from a black plastic bag inside the container, further supports the inference that Mr Jack-Kino knew and intended that the iodine be used as part of the methamphetamine manufacturing process. It is implausible that the collective presence of iodine, liquid methamphetamine, and methamphetamine powder is simply a remarkable coincidence.
Conclusion on conviction appeal
[38]For the reasons outlined, the conviction appeal must fail.
Appeal against sentence
District Court sentencing
[39] On 20 April 2021, Mr Jack-Kino was sentenced by Judge Bouchier. The lead charge was possession of methamphetamine for the purpose of supply. The Judge considered that 100.9 gram quantity of methamphetamine fell within band 2 of Zhang v R, which concerns dealings between five and 250 grams of methamphetamine.11 The corresponding range of penalty is between two and nine years’ imprisonment.
[40] The Judge considered that Mr Jack-Kino had a significant role in the operation due to his expected commercial profit and him having some awareness and understanding of the scale of the operation.12 Her Honour inferred that Mr Jack-Kino’s involvement was for “copious profits”, given the quantity of methamphetamine and precursor substance, his lack of addiction, and his previous involvement in the supply
11 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [125].
12 At [126].
of cannabis. The Judge concluded that a starting point in the middle of band 2 was appropriate. A starting point of six years’ imprisonment was adopted.
[41] The Judge then imposed uplifts of one year for possession of the iodine, and 13 months as a resentencing for the robbery for which Mr Jack-Kino was on home detention at the time of the offending. Her Honour then imposed a concurrent sentence of three months’ imprisonment for possession of methamphetamine. The final sentence was therefore eight years and one months’ imprisonment.
Did the Judge err by adopting a starting point that was too high?
[42] The parties agree that the starting point should be set with reference to band 2 of Zhang. Mr Nabney submitted, however, that the Judge adopted a starting point that was too high. In particular, he submitted, the Judge erred by finding that Mr Jack-Kino had a significant role in the drug dealing operation. He submitted that there was insufficient evidence to support such a conclusion. He noted that there was a lack of evidence consistent with drug dealing, including the absence of packaging, money, a tick-list and scales. Mr Nabney submitted that a starting point of four to five years’ imprisonment would therefore be more appropriate.
[43] The respondent submitted that the starting point was within the range available to the Judge. The verdict that Mr Jack-Kino possessed methamphetamine for the purpose of supply in these quantities necessarily connotes that the supply is for commercial gain. It is also of note that Mr Jack-Kino was close to the manufacturing source of the substances, as evidenced by the presence of methamphetamine in a liquid form. Indicia of drug dealing, such as money and packaging, is not essential to a finding of role.
[44] The difficulty facing the Judge was that there was limited evidence from which to make a finding as to what Mr Jack-Kino’s role in the overall drug supply operation was. In my view, however, it is at least possible that Mr Jack-Kino’s role was somewhat less significant than that found by her Honour.
[45] There is no evidence that Mr Jack-Kino was involved in the actual manufacture of methamphetamine (and he was not charged with such offending). Equipment of
the type necessary to manufacture methamphetamine was not found during the police search.
[46] Given that Mr Jack-Kino was on home detention at the time, and did not breach his sentence, whoever manufactured the methamphetamine must have brought the iodine container and its contents (including the bottles of liquid methamphetamine) to him. The fact that the methamphetamine was still in liquid form indicates that Mr Jack-Kino had a trusted relationship with the manufacturer or someone close to them. But that does not necessarily mean that he was a senior person in the organisation. The manufacturer could, for example, have been a close friend or family member who trusted Mr Jack-Kino to store the iodine and methamphetamine.
[47] Certainly the quantity of drugs present indicates that Mr Jack-Kino was involved in some way in a commercial drug trading operation. However, that does not establish his role within that organisation. It is not uncommon for offenders who have a lesser role in terms of Zhang to be in possession of large quantities of controlled substances. More senior members of the operation will regularly require members beneath them to store or move large quantities of drugs. Doing so can assist those senior members to avoid liability. “Catchers” are a classic example. They may hold very large quantities of drugs in their possession, but have a very junior role in the overall organisation.
[48] Here, as Mr Nabney pointed out, no evidence was found to suggest that Mr Jack-Kino intended to play an active role in processing the methamphetamine into powder form or preparing it for distribution. Detective Brown confirmed in his evidence that no distillation device was found during the search. Nor were scales, point bags or cash found. This tends to suggest that the further processing, preparation of the methamphetamine for distribution, and actual distribution, were likely intended to happen elsewhere.
[49] Given that Mr Jack-Kino could not leave the premises while on home detention, a third party would need to collect the substances for further processing and distribution. Accordingly, an available (and reasonable) inference on the evidence is that Mr Jack-Kino’s primary contribution to the enterprise was to provide a “safe”
storage place for the iodine and liquid methamphetamine for a finite period, until it was picked up by a third party to be transported elsewhere for further processing and distribution. It is not known how much remuneration Mr Jack-Kino would receive for such a service, but it may well have been a fixed sum and not a share of the “copious profits” as the Judge surmised.
[50] Obviously, it is possible that Mr Jack-Kino’s role was significantly greater than I have outlined. However, making such a finding requires a degree of speculation.
[51] The very limited evidence that is available, in my view, cannot support the inference that Mr Jack-Kino played a significant role in the operation in terms of Zhang. Nevertheless, his role was not insignificant. He must have understood the scale of the operation, given the quantity of methamphetamine and iodine in his possession. He therefore knowingly provided material support to a major drug dealing operation, by providing premises for methamphetamine and iodine to be stored.
[52] Overall, however, it is my view that the Judge erred by inferring that Mr Jack-Kino’s role was a senior or significant one, or that he would receive “copious profits”. The evidence is too scant to support such an inference. It is therefore necessary to infer that his role was somewhat more limited than that.
[53] As the Court of Appeal observed in Zhang,13 a more limited measure of engagement in criminal dealing deserves a less severe sentence than a significant or leading role. Here, the starting point must be assessed on the basis that Mr Jack-Kino’s role was primarily to hold or store the controlled substances for others, as an intermediate step between the initial manufacture and the subsequent final processing (distillation) and distribution. Such a role is more senior than that of a mere “catcher” but does not constitute a leading or senior role within the overall operation.
[54] Mr Nabney submitted that the lesser role played by Mr Jack-Kino warranted a starting point of four to five years’ imprisonment. I accept that submission and assess the appropriate starting point as being four years and six months’ imprisonment.
13 At [10(e)].
[55] The remainder of Mr Jack-Kino’s sentence was not challenged on appeal. In any event, the one-year uplift for possession of iodine already factors in totality. The 13-month uplift as a resentencing of the robbery conviction is unrelated to Mr Jack-Kino’s role in the drug offending. I also do not revisit the concurrent three months’ imprisonment for possession of methamphetamine.
Result
[56]The appeal against conviction is dismissed.
[57] The appeal against sentence is allowed. The sentence of eight years and one months’ imprisonment is quashed and substituted with a sentence of six years and seven months’ imprisonment.
Katz J
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