KODEE THOMAS KEE-SUE AND THE KING
[2024] NZHC 2970
•11 October 2024
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 and 8.6 grams in a 400ml container. Liquids consistent with that produced from the extraction of pseudoephedrine/ephedrine were found, as well as further liquids found to be consistent with manufacturing methamphetamine.
7 Sections 6(1)(c) and 2(b). Maximum penalty life imprisonment.
8 Sections 6(1)(c), (f) and 2(a). Maximum penalty life imprisonment.
9 Sections 6(1)(f) and 2(b). Maximum penalty 14 years’ imprisonment.
10 Section 9(1) and (2). Maximum penalty seven years’ imprisonment.
11 Section 6(1)(b) and 2(a). Maximum penalty life imprisonment.
[5] In a search of the appellant’s cell phone, police discovered photos and videos of the appellant handling large sums of money and more than 1.5 kilograms of methamphetamine. There are also recordings of the appellant extracting methamphetamine. Police concluded that the appellant was involved both in the selling at a street level basis of methamphetamine and at some stage also supplying methamphetamine to other people to on-sell. One conversation related to the purchase of a substantial quantity of methamphetamine with a price of $160,000 mentioned. A video was also found of the appellant with a suitcase, filled with cash of about $80,000. One intercepted conversation showed the appellant directing an associate to sell methamphetamine.
Procedural History
[6] The appellant was arrested on 17 June 2021. In November 2021 the Crown filed a charge notice containing 20 charges. On 23 June 2022, the appellant pleaded guilty to eight charges. On 29 September 2022 the Police filed a number of charges, and the Crown charge notice was updated on 7 November 2022.
[7] A Judge alone trial was held on 15 April 2024. At the conclusion of the Crown case, the Crown filed a memorandum signed by the appellant’s counsel seeking a ruling on charges 12 and 20 of the Crown charge notice which concerned manufacturing or producing methamphetamine. The parties sought a ruling on whether the recrystallisation of methamphetamine using a process involving caustic liquid amounted to manufacturing or producing methamphetamine for the purposes of an offence under s 6(1) of the Misuse of Drugs Act 1975.
[8] Judge Spear ruled that the appellant’s actions amounted to recrystallisation, and so produced or manufactured methamphetamine.12 As recorded in a minute of 17 April 2024, following delivery of the ruling, the defendant pleaded guilty to charges 3, 4, 9, 10, 17, 18, 19, and an amended charge 20.13 Charge 20 was a manufacturing charge, and it was amended to a representative charge, and the remaining manufacturing charge was withdrawn. The Minute recorded that the plea to charge
12 R v Kee-Sue [2024] NZDC 13897 (Ruling, 17 April 2024).
13 R v Kee-Sue [2024] NZDC 13897 (Minute, 17 April 2024).
17, which was the charge of possessing methamphetamine for supply, was entered on the basis that the defendant asserted he was at a relatively low level in the methamphetamine supply chain and more in the role of a courier. The Judge noted that this would be an issue for sentencing as the Crown contended that he was at a higher level. The remaining charges were withdrawn.
Sentencing Judgment
[9] Both the Crown and defence accepted that given the quantities of methamphetamine involved, Mr Kee-Sue’s offending fell within band five of Zhang v R, requiring the Court to adopt a starting point of between 10 years’ and life imprisonment.14
[10] The Judge then noted the seriousness of the offending, including the destructive impact of methamphetamine, saying that “those involved in peddling this drug at a significant level … can expect little mercy.”15 The main focus was on Mr Kee-Sue’s role and so where he fitted within the range of 10 years to life imprisonment.
[11] The Judge had “no doubt” that Mr Kee-Sue’s role was significant. He found that the methamphetamine dealing charges required the Court to adopt a starting point of 12 years’ imprisonment.16 He uplifted that by one-year for the firearms charges.17 The other offending attracted a one-year uplift.18 In addition, previous convictions on methamphetamine charges warranted a further uplift of one year. This resulted in an adjusted starting point of 15 years’ imprisonment.
[12] Turning to personal circumstances, the Judge noted the personal references which had been provided by Mr Kee-Sue’s parents and friends. He accepted that Mr Kee-Sue did have an addiction. This caused him to maintain his connection with
14 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
15 At [20].
16 At [28].
17 At [30].
18 At [31].
the drug dealing industry after his last release from prison. This warranted a five per cent credit.19 For guilty pleas, a 10 per cent reduction was awarded.20
[13]This resulted in an end sentence of 13 years and seven months’ imprisonment.
Conviction Appeal
[14] The appellant appeals the Ruling of Judge Spear in respect of charges 12 and 20 of the Crown Charge Notice (the manufacturing charges).21 The appellant argues that the activity he engaged in did not amount to manufacture and the entry of the guilty plea to one representative charge of manufacturing was a direct result of the ruling.
[15] Essentially, the appellant acknowledges that his actions did amount to recrystallisation of the methamphetamine. Mr Kee Sue acknowledges that there is authority that recrystallisation amounts to manufacturing.
The law
[16] The Supreme Court in Re Solicitor General’s Reference (No 1 of 2023) set out the test for conviction appeals following a guilty plea:22
[39] … the overriding test in an appeal following a guilty plea is whether a miscarriage of justice will result if the conviction is not overturned. A miscarriage of justice is defined as:
(4) … any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.”
[40] A “trial” is defined as including “a proceeding in which the appellant pleaded guilty”. The Act accordingly contemplates the possibility of a miscarriage despite a guilty plea. In considering the application of the miscarriage test, the Court of Appeal in Le Page said there were “at least”
19 At [35].
20 At [35].
21 Ruling, 17 April 2024 above n 12.
22 Re Solicitor General’s Reference (No 1 of 2023) [2023] 1 NZLR 457; [2023] NZSC 151.
three broad situations in which a miscarriage of justice would be indicated. Those were where:
(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)on the admitted facts, the appellant could not in law have been convicted of the offence charged; or
(c)the guilty plea was induced by a ruling which contained a wrong decision on a question of law.
[41] Subsequently, in Merrilees v R a further category was added, namely:
… where trial counsel errs in his or her advice to an accused as to the non-availability of certain defences, or outcomes, or if counsel acts so as to wrongly, and perhaps negligently, induce a decision on the part of a client to plead guilty under the mistaken belief or assumption that no tenable defence existed or could be advanced.
Analysis
[17] There has been no miscarriage of justice as a result of Mr Kee-Sue’s conviction on the charge of manufacturing methamphetamine. The Judge made no error in his ruling.
[18]The Misuse of Drugs Regulations 1977 defines manufacture as:23
any process by which controlled drugs may be obtained, other than the separation of opium, coca leaves, cannabis resin, cannabis fruit, or cannabis seed from plants; and includes refining and the transformation of controlled drugs into other controlled drugs”.
[19]Producing is defined as including “compound”.24
[20] At trial, an ESR scientist gave evidence that he had taken samples and swabs at the relevant address. His evidence was that the various exhibits located at the address, and videos taken from the appellant’s cell phone, were consistent with the manufacture of methamphetamine or the recrystallisation of methamphetamine. The process of recrystallisation involves the methamphetamine hydrochloride (salt), which is a class A controlled drug (sch 1, cl 4) being converted to a methamphetamine base, which is also a class A controlled drug (sch 1, cl 1) and back again. It is carried out for
23 Section 2.
24 Section 2.
the purpose of either refining it, or diluting it, with the ultimate aim of supplying it to buyers. To call this manufacturing is consistent with the Misuse of Drugs Regulations which, as set out above, includes “refining” controlled drugs as a form of manufacturing.25
[21] As the Crown pointed out, both the substances the appellant created in the process of recrystallisation – the solid usable salt form and the unusable liquid form, have different empirical formulas and are each controlled substances under the Act.26
[22]This categorisation is consistent with the Court of Appeal authority in R v Rua
which held that:27
[19] … On the facts of the present case manufacturing was complete once the methamphetamine was created in the liquid vessel. If, however, another person took the methamphetamine liquid, and, as we have described in [2], created methamphetamine hydrochloride, a manufacture would also have taken place with this process.
[20] Here, one form of a prohibited drug, methamphetamine, is by a process used to make another form of the prohibited drug, methamphetamine hydrochloride, (a salt). The chemical composition of the first substance, methamphetamine, is changed into a different chemical composition by manufacture, to the second substance, methamphetamine hydrochloride. This fits with a broad approach to “produce or manufacture” …
[23] If the act of recrystallisation did not fall under the definition of manufacturing, Mr Kee-Sue would avoid sanction based on a narrow interpretation. As the Privy Council in Karpavicius v The Queen confirmed that the Act should not be interpreted in such an overly narrow way.28
[24] It appears that Mr Kee Sue was adding a cutting agent to bulk up the amount of methamphetamine. This was presumably done with the intention of achieving higher returns. There was also evidence of an attempt at a process designed to retrieve traces of methamphetamine from the water through which it passed when being inhaled. The process was in the nature of recycling any remaining residue of methamphetamine from the water after smoking.
25 Section 2.
26 Misuse of Drugs Act 1975, sch 1.
27 R v Rua (AKA) Evans [2008] NZCA 38.
28 Karpavicius v The Queen [2002] 1 NZLR 156 at [16] and [17].
[25] As Mr Hannam acknowledged, I am bound by R v Rua. The scientific process employed was not challenged by Mr Kee Sue but rather whether it amounted to manufacture in law. Based on Rua there is no doubt that the processes found to be undertaken by Mr Kee Sue as outlined in the evidence of the ESR scientist., Mr Bogan, amounted to manufacturing under the Act. .
[26] The Judge made no error in his ruling. Overall, I am satisfied no miscarriage of justice has occurred in respect of the conviction. The ruling, which Mr Kee-Sue based his decision to plead guilty on, correctly concluded that the process undertaken by the appellant amounted to manufacturing. No other argument was suggested that indicated his guilty plea should be impugned. The appeal against conviction fails.
Sentence Appeal
[27] The appellant submits the sentence imposed in relation to the possession of methamphetamine for supply was manifestly excessive because the role of the appellant was not significant but fell into a lesser category. Mr Hannam submits that Mr Kee-Sue was a courier, albeit one who additionally handled money and had some role in negotiation. He said the video evidence did not provide confidence that the appellant owned or controlled the two large quantities of methamphetamine shown in the videos. While he engaged in the two transactions and handled the money, this was on instruction of those higher up in the chain. Mr Hannam also points to the absence of evidence that Mr Kee-Sue benefited from large amounts of money and there is evidence of only one dealer in his employ. Mr Hannam says the appellant did not perform a management function and he was driven by his own addiction. This assessment of his role would reduce the starting point for all methamphetamine charges to ten years, which is the bottom of the range for Band five offending. The Crown says the evidence supports the Judge’s finding that Mr Kee-Sue’s role was significant and the sentence was not manifestly excessive.
Approach to sentence appeals
[28] Under s 250 of the Criminal Procedure Act 2011, an appeal against sentence must only be allowed if the Court is satisfied that, for any reason, there was a material
error in the sentence imposed and a different sentence should have been imposed.29 The focus is on the final sentence reached. Although s 250 does not use the expression “manifestly excessive”, it is a principle that is well-established in the Court’s approach to determining the extent of the error in sentence appeals.30
Analysis
Preliminary Correction
[29] As a preliminary point, an arithmetical error was made by the Judge in calculating the final sentence. The appellant is entitled to the benefit of a correction albeit the end sentence is in range. The correction gives effect to the sentencing Judge’s intention.31
[30]The composition of Judge Spear’s sentence was as follows:
12 year starting point;
One year uplift for firearm charges; One year uplift for “other offending”; One year uplift for previous conviction; Discount for addiction of 5 per cent; Guilty plea discount of 10 per cent.
[31] Applying the Moses methodology the correct calculation to reach the final sentence is as follows:32
(a)Adjusted starting point = 14 years (12 year starting point plus one year for firearm charges and one year for other charges in this offending).
(b)Minus discount of 15 per cent for personal factors and guilty plea =
11.9 years
29 Tutakangahau v R [2014] NZCA 279; [2014] 3 NZLR 482 at [30] .
30 At [32]–[35]; and R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
31 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482, (2014) 27 CRNZ 291 at [36].
32 Moses v R [2020] NZCA 296.
(c)Plus uplift of one year for previous convictions = 12.9 years (rounded to 12 years 10 months)
[32] The error did not occur in the setting of the adjusted staring point but in the application of the discounts and the uplift for previous convictions. Accordingly, the appeal is allowed to the extent a correction of the end sentence is made. The end sentence of 13 years 7 months is set aside, and substituted with an end sentence of 12 years 9 months. The parties agree that the correction results in the substituted figure.
[33]I now turn to the starting point of 12 years for the methamphetamine offending.
[34] The main point on appeal is whether Judge Spears was correct to assess the appellant’s culpability at the level of “significant” under the Berkland categories of culpability.33 The relevant categories are those of “lesser” and “significant” role profiles. The lesser role is indicated by the following criteria:
1.Performs a limited function under direction;
2.Engaged by pressure, coercion, intimidation;
3.Involvement through naivety or exploitation;
4.Motivated solely or primarily by own addiction;
5.Little or no actual or expected financial gain;
6.Paid in drugs to feed own addiction or cash significantly disproportionate to quantity of drugs or risks involved;
7.No influence on those above in a chain;
8.Little, if any, awareness or understanding of the scale of operation; and/or
9.If own operation, solely or primarily for own or joint use on non-commercial basis.
[35]Whereas the significant role profile criteria are:
1.Management function in operation or chain where, under direction from a leader, this entails directing others in the operation whether by pressure, influence, intimidation or reward;
33 Berkland v R [2022] NZSC 148 at [71].
2.Operational function, whether operating alone or with others;
3.Motivated solely or primarily by financial or other advantage;
4.Actual or expected financial or other advantage, especially where commensurate with role and risk assumed; and/or
5.Some awareness and understanding of the scale of the operation.
[36] Judge Spears found that Mr Kee-Sue was far more than just one person operating a limited function under direction. While acknowledging that there would have likely been people above Mr Kee-Sue in the chain, Mr Kee-Sue took care in his offending, such as using encrypted apps to deal directly with arrangements for the purchase of methamphetamine. The Judge also considered the implications of the communication retrieved indicating that Mr Kee-Sue had previously acquired a kilogram and a half of the drug the previous December. This suggested again a significant role. Further, he concluded that an addict motivated primarily by their addiction would not be trusted with the quantity of cash and methamphetamine involved as disclosed in the evidence. Finally, the evidence that Mr Kee-Sue provided methamphetamine to at least one person to undertake street level dealing also supported the assessment of Mr Kee-Sue’s role as significant.
[37] Not all of the criteria for the significant role profile are present here. However, the indicators that are present are sufficient to support the Judge’s conclusion that Mr Kee-Sue’s role was significant. While for instance there is little evidence of large financial rewards supporting an extravagant lifestyle, there is evidence showing Mr Kee-Sue had control of significant amounts of cash. The evidence shows he was more than a mere courier and while he may have been under higher direction, he was performing a management function. As the Crown pointed out, there was evidence of the appellant being directly involved in the purchase of large scale, commercial amounts of methamphetamine. This included discussions for the sale and purchase of 35 ounces for $160,000, and the video of the appellant carrying a large container, estimated to carry one kilogram of methamphetamine. In addition, it noted that Mr Kee-Sue directed street level dealers to distribute on his behalf, as evidence by texts to an associate, telling him to sell the methamphetamine. Further evidence included the appellant being recorded on video saying he is “making up a cut for Mazarn” which the Officer in Charge confirmed was consistent with the name of a
local drug dealer. Finally it points out that the fact the appellant was recrystallising the drug showed a high level of engagement with the product. I do not consider that the Judge made any error in his assessment of Mr Kee-Sue’s role as significant.
[38] The starting point of 12 years for the methamphetamine related offending was within the range for offending assessed as being within band five, and a significant role, albeit with aspects of a lesser profile. For example, in the case of Wright v R, the offending fell within band five, and Mr Wright’s role was in the “leading” category. A starting point of 15 years was adopted and approved by the Court of Appeal.34 This offending involved a similar quantity of methamphetamine, but a more significant role is evident than is present in Mr Kee-Sue’s offending. In Simpson v R, where the offending was at the lower end of band five, and the lower end of “significant”, the Court of Appeal upheld a starting point of 11 years’ imprisonment.35 Therefore, given the added severity of Mr Kee-Sue’s engagement with the methamphetamine, it appears that a starting point of 12 years’ imprisonment is appropriate.
[39] I am also satisfied that the uplifts were within the available range. The firearms were cutdown, loaded .22 rifles. An uplift of one year is not excessive. The one year uplift for the further charges was also not excessive, given that the “other charges” included receiving stolen property valued over $1000 and cultivating cannabis which could attract significant penalties on their own.
[40] Overall, the adjusted starting point of 14 years was appropriate for this level of offending. The appellant did not contend that the discounts given by the Judge were inadequate, nor did he challenge the one year uplift for previous convictions. I am satisfied they are appropriate, and there was no error here.
[41] Given the quantity of methamphetamine involved in this offending, the significance of the appellant’s role, the significant additional charges, the overall end sentence as corrected to 12 years 9 months’ imprisonment was within the appropriate range and not manifestly unjust.
34 Wright v R [2023] NZCA 249.
35 See Simpson v R [2023] NZCA 202 where the Court of Appeal upheld an 11 year starting point for offending at the lower end of band five and the lower end of significant role.
Conclusion
[42]The conviction and the sentence appeals are dismissed.
Grice J
Solicitors:
C & M Legal, New Plymouth
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