KODEE THOMAS KEE-SUE AND THE KING - [2024] NZHC 2970

IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY

I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE

CRI-2024-443-25

CRI-2024-443-26 [2024] NZHC 2970

BETWEEN
KODEE THOMAS KEE-SUE

Appellant

AND

THE KING

Respondent

Hearing: 26 September 2024

Appearances:

J C Hannam for Appellant J E Bourke for Respondent

Judgment:

11 October 2024

JUDGMENT OF GRICE J

(Appeal against conviction and sentence)

Introduction

[1] Mr Thomas Kee-Sue was sentenced to 13 years and seven months’ imprisonment on 5 July 2024 in the New Plymouth District Court on the following charges: two charges of possession of a Class A controlled drug, namely methamphetamine and LSD;1 one charge of possession of a Class A controlled drug for supply;2 two charges of unlawful possession of a firearm;3 one charge of receiving (value over $1000);4 one charge of possession of a precursor substance;5 one charge of possession of equipment for manufacture of methamphetamine;6 four charges of

1      Misuse of Drugs Act 1975, s 7(1)(a) and 2. Maximum penalty six months’ imprisonment, $1000 fine.
2      Sections 6(1)(c), (f) and 2 (a). Maximum penalty life imprisonment.
3      Arms Act 1983, s 45(1)(b) and s 66. Maximum penalty four years’ imprisonment, $5000 fine.
4      Crimes Act 1961 s 246(1) and s 247(a). Maximum penalty seven years’ imprisonment.
5      Misuse of Drugs Act, s 12A(2)(b) and (3)(b). Maximum penalty five years’ imprisonment.
6      Sections 12A(2)(b) and (3)(b). Maximum penalty five years’ imprisonment.

KEE-SUE v R [2024] NZHC 2970 [11 October 2024]

offering to supply methamphetamine;7 one representative charge of possession of methamphetamine for supply;8 one charge of possession of class B drug for supply, namely ecstasy;9 one charge of cultivating cannabis;10 and one representative charge of producing or manufacturing a class A drug, namely methamphetamine.11

The offending

[2] Two police officers went to Mr Kee-Sue’s address, for reasons unconnected with this offending, or Mr Kee-Sue himself. Upon arrival, they noticed a plastic bag of cannabis, proceeded to search the property under the Search and Surveillance Act 2012 and came upon quantities of methamphetamine. In total, 18.4 grams of methamphetamine were found in various locations as well as a tick list, $450 cash in
$50 notes, scales of the type used for weighing out small quantities of methamphetamine and a New Zealand driver’s licence in an alias of Mr Kee-Sue.

[3] The police also found LSD tabs, ecstasy, and two .22 rifles that had been cutdown and were loaded. Outside a dirt bike was found that had been stolen back in June 2021. It had been altered by spray painting to change its appearance.

[4] The police also found substances that suggested that the property had been used for the manufacture of methamphetamine. This included multiple items of laboratory glassware containing chemical residues. These were examined by scientists from the National Clandestine Laboratory Response Team and a scientist from the Institute of Environmental Science and Research. Also found were hydrochloric acid, acetone, methylated spirits and turpentine. A total of 9.1 grams of solid methamphetamine was present in a glass baking dish…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] NZHC 2970
Decision Date: 11 October 2024

CaseChat Overview and Summary

The appellant, Kodee Thomas Kee-Sue, appeals both his conviction and sentence following a guilty plea in the New Plymouth District Court to multiple drug and firearm related charges. The High Court of New Zealand heard the appeal on 26 September 2024 and delivered its judgment on 11 October 2024. The primary issues for determination were whether the trial Judge made an error in ruling that the appellant's recrystallisation of methamphetamine amounted to manufacturing, and whether the sentence imposed was manifestly excessive.

The High Court found no error in the Judge's ruling that the recrystallisation process engaged in by the appellant amounted to manufacturing under the Misuse of Drugs Act 1975. The evidence presented at trial, including expert testimony from a scientist, confirmed that the process involved transforming one form of methamphetamine into another, which aligns with the statutory definition of manufacturing. The Court held that the Judge's conclusion was correct and that no miscarriage of justice had occurred, thus dismissing the conviction appeal.

Regarding the sentence appeal, the Court identified an arithmetical error in the calculation of the final sentence but found that the overall sentence, when corrected, remained within the appropriate range. The Judge had assessed the appellant's role in the methamphetamine supply chain as significant, which warranted a starting point of 12 years’ imprisonment. The Court upheld this assessment, noting that the appellant's involvement extended beyond that of a mere courier, including direct involvement in large-scale transactions and management functions. The Court also found the uplifts and discounts applied by the Judge to be appropriate, resulting in a corrected sentence of 12 years and 9 months’ imprisonment, which was not manifestly excessive.

In conclusion, the High Court dismissed both the conviction and sentence appeals. The Court's judgment affirms the correctness of the trial Judge's ruling on the manufacturing charge and the appropriateness of the sentence imposed, taking into account the appellant's significant role in the methamphetamine supply chain.

Orders