Masters v The Queen

[2012] NZHC 1831

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-185 [2012] NZHC 1831

JOSHUA MASTERS

v

THE QUEEN

Hearing:         24, 25, 28 May 2012

Submissions received: 18 and 20 June 2012

Counsel:         RM Mansfield and V Withy for Prisoner

J Shaw for Crown

Judgment:      25 July 2012

JUDGMENT OF TOOGOOD J

[DISPUTED FACTS HEARING UNDER S 24 SENTENCING ACT 2002]

This judgment was delivered by me on 25 July 2012 at 4:00 pm

Pursuant to Rule 11.5 High Court Rules

Registrar/Deputy Registrar

Solicitors:

RM Mansfield/V Withy, Barrister, Auckland:  [email protected]

J Shaw, Meredith Connell, Auckland:  [email protected]

MASTERS V R HC AK CRI-2011-404-185 [25 July 2012]

Table of Contents  Paragraph

Number

Introduction  [1] The Crown’s case  [5] The defence case  [13]

The Crown’s contentions as to the effect of Mr Masters’s

guilty pleas and Nguyen’s convictions

Crown  to  prove  aggravating  features  beyond  reasonable doubt

[18]

[23]

Did “a friend” mean an ounce of methamphetamine?  [24]

Conclusion  [55]

Other incriminating communications between Mr Masters and others

[56]

Tatum Masters  [57] The woman in Rotorua  [63] “Old school coins”  [64] Other conversations  [65]

Nguyen’s convictions  [67]

Conclusion on extent of offending  [68]

Supply  of  methamphetamine  to  Jamie  Liu  on  23 April 2008 (count 7)

Conspiracy     with     Minh     Hong     Nguyen     to     supply methamphetamine to others on 1 May 2008 (count 10)

Supplying       methamphetamine       to       others       between

12 February 2008 and 5 May 2008 (count 22)

[69] [70]

[71]

Money laundering (count 25)  [77]

Introduction

[1]      Joshua James Masters was arrested in May 2008 at the termination of a major Police investigation into the activities of the Tribesmen and the Killer Beez gangs which included some 84 days of intercepting telephone calls and text messages.  On

6 September 2009, on the first day of the scheduled trial of Mr Masters and eight co- accused, Mr Masters pleaded guilty to four counts in the indictment, as follows:

(a)       On or about 23 April 2008, at South Auckland, supplied the Class A

controlled drug methamphetamine to Jamie Liu (Count 7).

(b)On or about 1 May 2008, at South Auckland, conspired with Minh Hong     Nguyen     to     supply     the     Class A     controlled     drug methamphetamine to other persons (Count 10).

(c)      Between  12 February 2008  and  5 May 2008,  at  South  Auckland, supplied  the  Class A  controlled  drug  methamphetamine  to  other persons (representative charge) (Count 22).

(d)Between 12 February 2008 and 5 May 2008, at Auckland, in respect of property, namely cash, that was the proceeds of a serious offence, engaged in a money laundering transaction, knowing or believing that all or part of the property was the proceeds of a serious offence, or being reckless as to whether or not the property was the proceeds of a serious offence (Count 25).

[2]      In respect of the money laundering charge, Mr Masters was charged jointly with his domestic partner, Natalie Patricia Marsden Eyles.  Ms Eyles was discharged during the trial under s 347 of the Crimes Act 1961.   Mr Liu was acquitted of a charge of supplying methamphetamine to others after the supply to him to which Mr Masters pleaded guilty.

[3]      The remaining 11 counts in the indictment against Mr Masters have not been disposed of, pending his sentencing, but will be withdrawn once the sentences are

imposed.   They included allegations of specific dealing on various dates between

12 February 2008 and 5 May 2008, and some representative counts, all of which are subsumed by the representative charge to which Mr Masters pleaded guilty.

[4]      From the time Mr Masters entered his pleas until now, there has been an issue between  the  Crown  and  him  over  the  extent  of  his  actual  involvement  in  the offending to which he has pleaded guilty and as to the volume of methamphetamine involved.   These matters are important in view of the considerations which arise

under the sentencing guideline judgment of R v Fatu.1

The Crown’s case

[5]      The Crown asserts that Mr Masters was the leader of the Killer Beez gang and that, as the numerous convictions of gang members for methamphetamine offending attests, the gang was heavily involved in major drug dealing.

[6]      The Crown’s case as to the extent of Mr Masters’s involvement in dealing in methamphetamine rests principally upon the content of intercepted communications, by cellphone call and text messages, between Mr Masters and his associates.  The interception evidence has been supplemented by evidence, admitted by consent in the form of a statement from a Detective Sergeant familiar with investigations into serious drug offending, as to coded language or “drug speak” used by those involved in the distribution of controlled drugs, and other evidence which explains how the distribution  of  controlled  drugs  is  operated  by  the  criminal  underworld.    This evidence  is of a type familiar to the Court  and, as to its  general terms, is not disputed.  What is disputed is whether Mr Masters and his associates were referring to methamphetamine in the intercepted communications from which the Crown invites  the  Court  to  draw  certain  inferences  and,  if  so,  in  what  quantities. Mr Masters also disputes the Crown’s contention that it is proper to infer from the content and circumstances of the communications that he was directly involved in

procuring and on-supplying methamphetamine.

1 R v Fatu [2006] 2 NZLR 72; (2005) 22 CRNZ 410.

[7]      The interception evidence was also supplemented by evidence from one of the  officers  in  charge  of  the  investigation  summarising  evidence  of  covert surveillance of Mr Masters and his associates which was given at the trial of the co- accused.

[8]      Although  the  prisoner  has  pleaded  guilty to  supplying  methamphetamine between 12 February and 5 May 2008, the evidence relied upon by the Crown is focused primarily on the relationship between Mr Masters and Minh Hong Nguyen and a number of conversations and exchanges of text messages between them between 22 April 2008 and 1 May 2008.  It is alleged by the Crown that Nguyen was Mr Masters’s  principal  supplier  of  methamphetamine,  supplying  him  on  several occasions   with   amounts   of   either   one   or   two   ounces   (28-56 grams)   of methamphetamine,  and  that  these  arrangements  culminated  in  an  agreement  on

1 May 2008 for the supply of three ounces of methamphetamine.  It is the Crown’s case that while Nguyen was en route by car from his residence to the accused’s residence a short distance away, he was apprehended in possession of four ounces of methamphetamine, three ounces of which he intended to supply to Mr Masters.  This frustrated transaction is the basis for count 10 in the indictment to which the accused pleaded guilty.

[9]      It  is  also  alleged  that  between  22  and  30 April 2008,  there  were  five completed  transactions  in  which  Nguyen  supplied  Mr Masters  with  a  total  of

224 grams or six ounces of methamphetamine as follows:

22 April 2008  28 grams

23 April 2008  56 grams

26 April 2008  28 grams

28 April 2008  56 grams

30 April 2008  56 grams

Total  224 grams

[10]     These transactions form part of the underlying factual basis for count 22 in the indictment.  Also related to this count is evidence of what the Crown says were transactions involving other persons to which I shall refer in due course.

[11]     Count 7 in the indictment alleges the supply by Mr Masters to Jamie Liu, a charge which appears to be associated with either the alleged supply of methamphetamine by Nguyen to Mr Masters of one ounce of methamphetamine on

22 April or the supply of two ounces of methamphetamine on 23 April 2008.

[12]     The Crown’s case in relation to the money laundering charge in count 25 is that the proceeds of the methamphetamine dealing described were used, at least in part, to finance a music business, Colourway Records, operated by Mr Masters from the property he occupied at 9 Collett Road, Otara.

The defence case

[13]     In response to this evidence, Mr Masters has sworn and filed an affidavit dated 23 May 2012.  He gave oral evidence before me and was cross-examined.  The essence of the prisoner’s dispute with the Crown’s evidence supporting the charges to which he pleaded guilty is his evidence that, while he was aware that associates were dealing in methamphetamine and other controlled drugs, the extent of his involvement was limited to putting buyers (such as Mr Nguyen) and sellers in touch with each other so that drug transactions could occur.   He denies ever handling controlled drugs and points to the absence of any trace of controlled drugs or drug- related paraphernalia at the places he occupied during the relevant period, being particularly the property rented by Mr Masters and his domestic partner at 9 Collett Road, and a flat above commercial premises in Velvet Crescent, Otara.

[14]     Despite pleading guilty plea to supplying methamphetamine to his cousin Jamie  Liu  on  or  about  23 April 2008  (count 7),  Mr Masters  denies  that  the intercepted  communications  between  Mr Liu  and  him  related  to  the  supply  of methamphetamine.   He says that Mr Liu came to Auckland to purchase a motor vehicle and, on that trip, bought $1,200 worth of Colourway Records merchandise which he was intending to onsell.

[15]     In respect of the money laundering charge, Mr Masters says (notwithstanding his guilty plea) that his domestic partner, Natalie Eyles, managed the finances for the record business and he was not aware that any money from the supply of controlled drugs was used in the business.

[16]     Responding more generally to the Crown’s allegations, Mr Masters denied that, at the time of his offending, he was properly referred to as the head of the Killer Beez  gang.    He  acknowledged  that  at  one  time  he  was  heavily  involved  in establishing the group, but said that by the time of his arrest he had formalised the entity into a limited liability company and had withdrawn from a leadership role.  He said he made that decision in 2007 after having been seriously assaulted.  He also denied being formerly involved with the Tribesmen Motorcycle Club, although did indicate  that  he  knew  a  number  of  people  who  were  involved.    Despite  his background and his acknowledgement of earlier offending, he said that by the beginning of 2008  he  had  shifted the focus  of  his  attention  to  the Colourways Records music business.  To the extent that he was said to be a role model for others, he had intended to demonstrate that there were legitimate ways of earning a good living.   While tolerant of any drug dealing by others, he did not approve of or encourage it.  He pointed out that at the time of his arrest he had no assets, not even a vehicle, and that such funds as were available to him came from back payments received from Work & Income New Zealand.

[17]     It was not disputed by the Crown that Colourways Records was a legitimate business supplying CDs and clothing and that the Collett Road property appeared to be the operational headquarters of the company.

The  Crown’s  contentions  as  to  the  effect  of  Mr Masters’s  guilty  pleas  and

Nguyen’s convictions

[18]     Mr Shaw for the Crown relies on s 24(1)(b) of the Sentencing Act 2002 in support of the proposition that, despite Mr Masters’s evidence on these matters, the Court is required to accept as proved all facts, express or implied, which were essential to the pleas of guilty entered by Mr Masters at the start of the trial.

[19]     The Crown also relies upon s 49 of the Evidence Act 2006, which provides as follows:

49       Conviction as evidence in criminal proceedings

(1)       Evidence of the fact that a person has been convicted of an offence is, if not excluded by any other provision of this Act, admissible in a criminal proceeding and proof that the person has been convicted of that offence is conclusive proof that the person committed the offence.

(2)       Despite subsection (1), if the conviction of a person is proved under that subsection, the Judge may, in exceptional circumstances,—

(a)       permit a party to the proceeding to offer evidence tending to prove that the person convicted did not commit the offence for which the person was convicted; and

(b)       if satisfied that it is appropriate to do so, direct that the issue whether the person committed the offence be determined without reference to that subsection.

(3)       A party to a criminal proceeding who wishes to offer evidence of the fact that a person has been convicted of an offence must first inform the Judge of the purpose for which the evidence is to be offered.

[20]     The Crown has indicated, in accordance with s 49(3), that the purpose for its reliance  on  s 49  is  to  support  the  Crown’s  allegation  that  Nguyen  supplied Mr Masters with a quantity of methamphetamine on each of the specific occasions to which  the  convictions  relate.    The  Crown  says  that  evidence  of  the  supply by Nguyen on the specific occasions support the Crown’s case that Mr Masters on- supplied the methamphetamine received from Nguyen to others.

[21]     It is the Crown’s case that the convictions can reasonably be relied upon as proof of the commission of the respective offences by Nguyen in that they resulted from guilty verdicts entered by a jury after a defended trial.  Mr Shaw for the Crown acknowledges that, in effect, this case is one in which the prisoner has been given leave, under s 49(2), to  adduce  evidence contrary to the  convictions.   Mr Shaw submits that the convictions might reasonably be regarded as presumptive rather than conclusive proof of the commission of the offences, or circumstantial evidence to be weighed in the balance of the evidence as a whole.

[22]     Mr Mansfield acknowledges that the prisoner must accept that he has pleaded guilty  to  four  specific  counts  in  the  indictment  but  says  it  is  for  the  Court  to determine the factual basis upon which Mr Masters is to be sentenced.  He submits that although Nguyen was convicted of supplying methamphetamine on each of the occasions  specified,  the  convictions  in  themselves  do  not  assist  the  Court  to determine the extent of Mr Masters’ involvement or the quantity of drugs involved. Mr Mansfield argues that the only inference to be drawn from the convictions is that Nguyen supplied the asserted drug on the occasions specified, and he submits that the jury was not asked to determine whether Mr Masters, who was referred to in the indictment, was a principal or a party; whether he received that drug or another; or whether he obtained any financial gain from the transaction.   He submits that the reference  to  Mr Masters  in  the  counts  faced  by  Nguyen  was  not  an  essential particular of the count and argues that the convictions provide little, if any, evidence relating to the matters in dispute.

Crown to prove aggravating features beyond reasonable doubt

[23]     In coming to my views as to the conflicting positions taken by the Crown and the defence on the matters in dispute, I have been mindful of the requirement under s 24(2)(c)  of  the Act  that  the  onus  is  upon  the  prosecutor  to  prove  beyond  a reasonable doubt the existence of any disputed aggravating fact, and to negate to the same standard any disputed mitigating fact raised by the defence that is not wholly implausible or manifestly false.

Did “a friend” mean an ounce of methamphetamine?

[24]     The starting point in the consideration of the Crown’s case that the prisoner was a major commercial dealer in methamphetamine, and not merely a person who provided opportunities for others to deal in the drugs, is the Crown’s allegation that Nguyen and Mr Masters used the word “friend” to refer to one ounce quantities of methamphetamine.

[25]    The first occasion on which the alleged code language was used in an intercepted communication between Nguyen and Mr Masters was in a cellphone call

from Nguyen to Mr Masters at 8:18 pm on 22 April 2008. After a brief introduction, there was the following exchange:2

MASTERS:     Yeah I need a friend.

NGUYEN:      Aye, okay, okay ah won’t be long aye bro.

MASTERS:     Yeah okay.

NGUYEN:      Give me say half an hour. MASTERS:     Oh okay then Hendi. NGUYEN:      I come straight to your place.

[26]     The Crown says that the significance of the exchange is that Nguyen appears to know immediately and without explanation what is being referred to in a conversation which would otherwise require some background explanation.

[27]     The  Crown  also  says  that  the  conversation  should  be  considered  in  the context of an intercepted cellphone conversations that day between Mr Masters and Jamie Liu, whom the prisoner describes as “a close family member and friend”.3

[28]     In  that  conversation,  at  about  4:00 pm  on  22 April 2008,  there  is  the following exchange:4

LU:                But I I just thought I would catch up with you when I come up there next.

MASTERS:     Yeah hard.

LU:                Sweet, sweet to come up and see you? MASTERS: Yeah hard cuz.

LU:                Um how can I get hold of you?

MASTERS:     Um,  just  come  to  Fergusson  shops  cuz  and  fuck  yeah, everyone up here knows.

LU:                (laughs).

MASTERS:     .. knows where I’m at.

2      Page 86 of the Transcripts.

3      Affidavit of the Prisoner dated 23 May 2012 at 3.1.

4      Pages 90-91 of the Transcripts.

LU:                 Yeah yeah, I was I was just wondering if I could catch up with you and have a bit of a chat or something?

MASTERS:     Yeah.   Just  how  much  you  going  to  bring  up  that’s  all.

(laughs).

LU:                Yeah yeah yeah .. nah nah it’ll be a bit bit

MASTERS:     Oh yeah.  Yeah well if you can come up today cuz, fuck I’ll

yeah I might be able to help you out..

LU:                Sweet.

MASTERS:     .. with what you’re looking for.

[29]     Mr Lu then suggested he would leave a text or give Mr Masters a call back and Mr Masters concludes the discussion by asking Mr Lu if he is going to fly up.

[30]     Then at 9:27 pm that evening, about an hour after the conversation between Nguyen  and  Mr Masters,  Mr Masters  and  Mr Lu  discuss  Mr Lu’s  getting  to Auckland the next day. There is the following exchange:5

MASTERS:     Arh, if you’re going to fly stay up for an overnighter.

LU:                Yeah yeah then then head home. MASTERS:       Yeah hard. Then fly back down, whatever?

LU:                Would you be able to do anything with twenty bro? MASTERS:  Aye?

LU:                Would you be able to do anything with twenty bro? MASTERS:    Um ...... yeah yeah.

LU:                 Yeah sweet I’ll I’ll head up and see you.  I’ll give you a call tomorrow what time I leave.  I don’t know if I will fly up or get a ride up with someone.

MASTERS:     Yeah. LU:          Yeah.

MASTERS:     Yeah you might as well fly up and tell them to drive up? LU:        Yeah yeah.

MASTERS:     Aye.

5      At page 94 of the Transcripts.

LU:                Yeah yeah I might do it that way. MASTERS:  Yeah and then they can be the ....

[31]     It  is  the  Crown’s  case  that  the  reference  by  Mr Liu  to  “twenty”  is  a proposition that he might have $20,000 available to purchase methamphetamine.  On the Crown’s  evidence,  that  sum  of money would  be sufficient  to  purchase two ounces of high quality methamphetamine.   Mr Masters said in evidence that the conversation concerned a proposal to introduce twenty new prospective members to the Tribesmen Motorcycle Club.

[32]     At 12:27 pm the following day, April 23, Mr Liu telephoned Mr Masters to indicate  that  he  would  be  in Auckland  by  that  evening.    Six  minutes  later,  at

12:33 pm, Nguyen and Mr Masters have a discussion in which Mr Masters says that he is “just waiting for the five-five”, and in response to Nguyen’s query whether Mr Masters wishes him to visit him Mr Masters says “This afternoon or same time tonight”.  Nguyen agrees and there is then the following exchange:6

MASTERS:     Yeah yeah it’ll be two friends? NGUYEN: Yeah yeah all good. MASTERS:         Ok then brother.

NGUYEN:      Alright. MASTERS:        See you tonight.

[33]     In response to a phone call inquiry by Nguyen at 5:52 pm that evening, Mr Masters instructs him to visit at about 8 o’clock.

[34]     The  evidence  establishes  that  Mr Liu  was  intercepted  by  the  Police  at Auckland Airport at approximately 7:30 pm that evening where he was spoken to and found to be in possession of $8,300 in cash.  He was allowed to go on his way and  was  collected from  the airport  by Mr Masters.   At  8:52 pm,  an intercepted telephone call from Mr Masters to Nguyen indicates that Nguyen was on his way to

Mr Masters’s house and would be there in just two minutes.

6      Page 99 of the Transcripts.

[35]     Later conversations between Mr Masters and Mr Liu establish that Mr Liu arranged a money order transfer of $1,200 to Mr Masters a few days after their meeting in Auckland.

[36]     The Crown’s case that these intercepted communications involved dealing in ounces of methamphetamine is based on the apprehension of Nguyen in possession of  four  ounces  of  methamphetamine  on  1 May 2008  shortly  after  intercepted telephone conversations with Mr Masters.

[37]     At  5:03 pm  on  1 May 2008,  Mr Masters  called  Nguyen;  the  following exchange was recorded:7

NGUYEN:      So um.

MASTERS:     All good for three friends? NGUYEN:     Um yeah should be soon. MASTERS: 9 o’clock tonight? NGUYEN:      Ah 9 o’clock?

MASTERS:     Yeah.

NGUYEN:      Oh that’s better yeah.

...

NGUYEN:      I’ll see you tonight.

MASTERS:     Oh I’ll call you about 8 o’clock anyway to let you know. NGUYEN:  Ok cool.

[38]     At about 8:20 pm Nguyen called Mr Masters where the following exchange took place:8

NGUYEN:      Hey Hendi, yeah aye I won’t be long aye.

MASTERS:     Oh 9 o’clock aye 9 o’clock alright?

NGUYEN:      Yeah right right alright no worries.

7      Pages 170 and 171 of the Transcripts.

8      Page 173 of the Transcripts.

MASTERS:     Yep, ah three friends? NGUYEN: Ok.

...

MASTERS:     Thank you. NGUYEN:    I’ll see you soon. MASTERS:     Ok sweet. NGUYEN:  Ok bye.

[39]     At 8:48 pm Mr Masters  called Nguyen to inquire how far away he was. Nguyen said he was about 15 minutes away and would see Mr Masters soon.  This call  was  followed  up  by  another  by  Mr Masters  at  9:09 pm  in  which  Nguyen indicated he was five minutes away.

[40]     Mr Masters  endeavoured  to  call  Nguyen  at  9:33 pm.    The  call  was  not answered but Mr Masters is recorded as saying “This fella is not usually that late”. He made a further call to Nguyen’s phone at 9:55 pm.

[41]     Mr Masters’s inability to contact Nguyen is explained by the fact that Nguyen was apprehended by Police heading towards Mr Masters’ house at approximately

9:15 pm.   Three one-ounce bags of methamphetamine were found in the footwell area to the rear of, or just underneath, the front driver’s seat.  A single ounce bag of methamphetamine was found forward and to the left of the driver’s seat.  It is the Crown’s case that the three ounces of methamphetamine located behind the seat were the three “friends” or one-ounce bags intended for supply to Mr Masters.

[42]     It is improbable that Nguyen would have been carrying what the Crown would submit was at least $40,000 worth of methamphetamine for supply by having placed the four bags in the positions in which they were found.  It is more likely that the  bags  were  either  stowed  under  the  driver’s  seat  of  the  vehicle  during transportation or that Nguyen was carrying them on his person and discarded the drugs in haste, when the Police stopped his vehicle, to avoid detection if he was searched.

[43]     It is Mr Mansfield’s submission that no inference should be drawn of a direct correlation between the three ounces of methamphetamine found in the rear of the vehicle and the request by Mr Masters for “three friends”.

[44]     However,  the  finding of the three  bags  in  a  separate position  and  some distance from the fourth bag is at least consistent with the Crown’s proposition that the three one-ounce bags intended for Mr Masters were being carried separately by Nguyen.  In any event, the Crown says that, even if the four bags were initially being carried together, it is an overwhelming inference that three of them were intended for delivery  to  Mr Masters  a  few  minutes  later.    It  is  the  Crown’s  case  that  the correlation between Mr Masters’ inquiry about whether Nguyen was “all good for three friends”, the confirmation at about 8:20 pm, and the finding of four one-ounce bags in Nguyen’s possession less than an hour later is obvious.

[45]     Mr Masters explained that, in the discussion preceding the interception of the drugs in Nguyen’s possession, the “three friends” referred to were three associates of the prisoner in the Killer Beez organisation who respectively wanted to meet Nguyen at the Collett Road address about a drug debt, a car and a bike.

[46]     Mr Masters’s explanation for the use of the term “friends” in relation to these three men is consistent with at least some of his evidence relating to uses of the terms “friend” or “friends” on earlier occasions.  In general terms, he suggested that he was aware that Nguyen was dealing drugs to the three named associates and others from time to time and because of his relationship with Nguyen and with the others, he was in a position to facilitate meetings.  He said these meetings took place in the vicinity of his place at 9 Collett Road, Otara, but he had nothing to do with the transactions.  Unless Nguyen wanted to see him about other matters, the drug-related meetings took place on the street.

[47]     It was Mr Masters’s evidence that as a result of an acquaintance having been killed in a drug transaction some time earlier, Nguyen was highly suspicious and concerned about the possibility of harm on the occasions on which he supplied drugs to Mr Masters’ associates.   It was arranged that he would bring his own friends,

depending  on  how  many  persons  were  waiting  at  9 Collett  Road,  to  provide protection during the transaction.

[48]     I found this explanation completely lacking in credibility.

[49]     First, it makes no sense, if Nguyen was intending to bring three friends with him to even up the numbers on 1 May 2008, for Nguyen to be travelling alone in the direction of Mr Masters’s address and only five minutes from it.   Second, if the purpose  of  the  meeting  had  simply been  to  settle  a  drug  debt  and  discuss  the purchase of a car and a bike, it is highly unlikely that Nguyen would have been in possession of the four ounces of methamphetamine.   Third, Mr Masters’s evident anxiety to confirm the arrangement, and as to Nguyen’s whereabouts, is inconsistent with his supposed role in merely setting up an innocuous meeting in which he had no direct interest.

[50]     The use of the term “friends” on this occasion, as explained by Mr Masters, is not  consistent  with  the  explanation  given  by  Mr Masters  in  relation  to  other occasions on which he used it.  His evidence was that the reference to a “couple of friends” and “two friends” in earlier discussions on 28 April was intended to convey that Mr Masters had two friends with him who were wishing to acquire drugs.  This different use of the expression is emphasised in that in the conversation on 28 April, Mr Masters  had  said  to  Nguyen:  “I’ll  need  another  friend  yeah.”    In  evidence Mr Masters said that this was a reference to Mr Solomon waiting at his house for Nguyen to meet him but that proposition in relation to the expression used (“ I’ll  ne ed  another friend”) does not make sense.

[51]     The conversations on 26 April 2008 between Mr Masters and Nguyen were also the subject of implausible explanations by Mr Masters.  They indicate, in my view, that the prisoner was directly involved in purchasing methamphetamine, as the following excerpts from the transcripts demonstrate.  This appears in a conversation between Mr Masters and Nguyen at 3:05 pm on 26 April 2008:9

MASTERS:     You meet me in an hour at my house?

9      Pages 120-121 of the Transcripts.

NGUYEN:      Hour? MASTERS:  Alright? NGUYEN:  What’s that?

MASTERS:     Can you meet me at my house in an hour? NGUYEN:  Ok. You alright?

MASTERS:     Yeah yeah, I just got back. NGUYEN:     You just got back from where?

MASTERS:     Yeah just got back from um, Wellington about um um, I’m

out Papakura, just picking up your coin and then, yup.

NGUYEN:      Ok ok.

MASTERS:     See you at my house, aye? NGUYEN:     Ok, ok.  Cool.

MASTERS:     Alright? Can you bring a friend? NGUYEN:  Yep.

[52]     Under  cross-examination, the prisoner suggested implausibly that  he was referring to the fact that Dennis Solomon and one other person were waiting for Nguyen at the Collett Road premises.  I do not accept the question, “Can you bring a friend?” carries that meaning, any more than the term ‘friend’ does in the ensuing conversation just before 5:00 pm that day when Nguyen said:

NGUYEN:      But do you want me to bring some friend for you? MASTERS:  Yes please brother.

[53]     I accept Mr Shaw’s analysis, on behalf of the Crown, of the timing of the conversations and the transaction.  There was ample time for the prisoner to receive the drugs from Nguyen before he attended a birthday party at around 7 pm that evening.

[54]     It   was   Mr Masters’s   evidence   that   the   initial   conversations   between Mr Nguyen  and  him  related  to  the purchase from  Mr Nguyen  of two  car DVD players.  I found the prisoner’s explanation to be contrived and I did not accept there

was any credible reason, if the subject matter of their conversations was legitimate, why the items were never expressly referred to.

Conclusion

[55]     Having reviewed the transcripts and Mr Masters’s explanations for what the Crown says is otherwise damning evidence of the use of code to refer to drugs, I am wholly satisfied that on 1 May 2008 and on the earlier occasions, Mr Masters and Nguyen understood, without any elaboration, that a reference to a “friend” was a reference to a one ounce bag of methamphetamine and that “two friends” and “three friends” had corresponding meanings.  Mr Shaw’s careful analysis of the evidence is realistic and acceptable to me.

Other incriminating communications between Mr Masters and others

[56]     I found the prisoner’s explanation of other incriminating conversations to be

equally implausible.

Tatum Masters

[57]     A series of conversations between Mr Masters and his sister, Tatum, between

27 April and 2 May 2008 are relied upon by the Crown to demonstrate the extent to which Mr Masters was directly involved in supplying methamphetamine to others. The first call at 11:17 am on Sunday, 27 April 2008, includes Mr Masters asking his sister if she knows anyone “that wants any um work”.  There is then an exchange of text messages about three hours later in which Tatum Masters says to her brother:

If i get rid of a rnd wil u nike me quartr 4 a fw days an il pay bk 5 pls i nd 2 buy the boys a decnt ryd pls.

[58]     The Crown’s case is that “a rnd” (“round”) is a reference to a round one or an ounce  of  methamphetamine;  “nike  me”  is  a  reference  to  the  Nike  swoosh  or trademark tick, being slang for acquiring drugs on tick or credit, and that the suggestion is that Ms Masters would repay the debt to her brother out of the proceeds of drug sales.

[59]     That this was an incriminating communication is demonstrated, the Crown says, by Mr Masters’s response thirty minutes later in which he calls his sister to say “Dont send me that hot shit ... dont text me anything”.  That disapproving comment was  followed  by a  question:  “Well  how longs  yr  mans  gonna be?” and Tatum Masters’s response that she was “ringing them right now on the other phone”.

[60]     The following day, Mr Masters called his sister to ask what happened to her mate?  She replied that “he only wanted to pay 14” and that she had told him it was “16”, so the man “went looking somewhere else”.  Mr Masters then says: “Oh yeah well see if he still wants it.”

[61]     Two days later Mr Masters telephoned  his sister with  an inquiry: “Yeah, whats up, selling?”, to which she replies that she has only about $1200 of her own money.  Mr Masters then said: “Oh come on what about your mates?”  Mr Masters continued to press her about how much money she and her friends had.

[62]     The context of the discussions and Mr Masters’s annoyance at the unguarded language used by his sister in her text messages and in the intercepted conversations underlines the illicit nature of the subject matter.   I do not accept Mr Masters’s explanation   that   the   conversations   with   his   sister   did   not   involve   him   in endeavouring to supply drugs.  His evidence was that his sister had approached him to supply but that his sister’s approaches were unwelcome and uninvited.   In my view, his inquiry about the interest of other people and the financial position of his sister’s friends establishes otherwise.

The woman in Rotorua

[63]     On other occasions, Mr Masters had intercepted telephone discussions with an unidentified woman, who was apparently in Rotorua, in which the Crown says he was seeking to supply drugs in ounce amounts.  He inquired whether there were any high rollers in her area and made a reference to “16 grand”.  He encouraged her to hit up   her   friends   for   some   “work”.      Under   cross-examination,   Mr Masters acknowledged that the reference in those conversations was to methamphetamine but said that it was in jest.  I did not believe him.

“Old school coins”

[64]     These conversations are consistent with another conversation with a person whom the prisoner suggested was a friend from whom he wished to purchase rings made of old sovereigns.  I accept the Crown’s proposition that the expression “old school coins” in that discussion referred to the sale of ounces of methamphetamine at

$15,000 an once.

Other conversations

[65]     Other  intercepted  communications  indicate  the  prisoner’s  involvement  in dealing in drugs.   On 19 March 2008 he had a conversation with someone named James with whom he had previously been acquainted in jail.   After James told Mr Masters that he was “just looking for some shocks”, Mr Masters asked him to leave his number with Ms Eyles (who had initiated the call) and said that he would contact him later.  In evidence, Mr Masters accepted that the reference to “shocks” was a slang reference to a gram of methamphetamine but he claimed that it was clear from the conversation that he was just being polite and not taking the matter anywhere.   On the contrary, it is a clear inference from the conversation that the prisoner was believed by James to be a dealer and that Mr Masters was prepared to deal with him at a later stage.

[66]     Other   conversations   between   Mr Masters   and   associates   who   were apprehended and convicted of drug dealing offences as a result of the extensive Police investigation contain oblique references and slang expressions which, I am wholly satisfied, were designed to obscure dealing in gram or part-gram quantities of methamphetamine.   Notwithstanding Mr Masters’s attempts to explain that these conversations as being related to the sale of motorbikes, CDs or other merchandise, the nature of the conversations and accompanying text messages satisfies me that Mr Masters was a pivotal figure, having a hands-on involvement, in the distribution of the methamphetamine which he received from Mr Nguyen or others.

Nguyen’s convictions

[67] At trial, the jury found Nguyen guilty of the counts in the indictment in which it was alleged he supplied methamphetamine to Mr Masters on the five occasions referred to at [9] above. Since those findings were based on the intercepted conversations relied upon against Mr Masters, I consider it safe to apply s 49 of the Evidence Act 2006 to the convictions of Mr Nguyen on those counts as evidence corroborating the Crown’s allegations against Mr Masters.

Conclusion on extent of offending

[68]     I am satisfied beyond reasonable doubt, on the totality of the evidence and taking  into  account  the  implausible  explanations  which  the  prisoner  gave  in evidence, that Mr Masters was guilty as a principal party of the offending to which he pleaded guilty and that the quantities of methamphetamine involved in each case were as set out below.

Supply of methamphetamine to Jamie Liu on 23 April 2008 (count 7)

[69]     Mr Masters’s innocent explanation of his dealings with Mr Liu at this time is inconsistent with his guilty plea and I am satisfied that it is false.   The evidence persuades  me  beyond  reasonable  doubt  that  Mr Masters  supplied  approximately one ounce of methamphetamine to Mr Liu for a price of around $9,500, being the

$8,300 found in Mr Liu’s possession on 23 April 2008 and the $1,200 transferred by

Mr Liu to Mr Masters by money order subsequently.

Conspiracy  with  Minh  Hong  Nguyen  to  supply  methamphetamine  to  others  on

1 May 2008 (count 10)

[70]     I  am  satisfied  beyond  reasonable  doubt  that  it  was  agreed  between Mr Masters and Nguyen on 1 May 2008 that Nguyen would supply Mr Masters with three ounces  (84 grams)  of  methamphetamine  with  a  view  to  the  drugs  being supplied to others, and that these part of were the drugs intercepted by the Police when  Nguyen  was  arrested  on  his  way to  make  the  delivery to  Mr Masters  at

9 Collett Road, Otara.

Supplying methamphetamine to others between 12 February 2008 and 5 May 2008 (count 22)

[71]     I am also satisfied beyond reasonable doubt that the conversations between Nguyen and Mr Masters between 22 April 2008 and 30 April 2008, considered in conjunction  with  the  other  evidence,  establish  that  a  total  of  224 grams  of methamphetamine  were  supplied  to  Mr Masters  by  Mr Nguyen  in  five  separate transactions as alleged by the Crown.10

[72]     I am also satisfied beyond reasonable doubt that the supply of one ounce or

28 grams  of  methamphetamine  on  22 April 2009  was  not  the  first  transaction between Mr Nguyen and Mr Masters.  The earlier recorded conversations in which Mr Masters demonstrated his direct involvement in dealing in smaller quantities and in attempts to dispose of one-ounce quantities of methamphetamine satisfy me that he was an active receiver and supplier of methamphetamine in commercial and other quantities between the dates alleged in the indictment.

[73]     The evidence establishes therefore that his offending in conjunction with

Nguyen  involved  a  total  quantity of  308 grams  of  methamphetamine,  being  the

224 grams actually supplied and the 84 grams seized by the Police before Nguyen could make the delivery on 1 May2008.

[74]     The evidence of the activities in which Mr Masters engaged prior to 22 April is insufficient to enable me to reach any firm conclusion as to the other amounts involved, but it is clear that Mr Masters is properly to be regarded as supplying large commercial quantities, placing him at least in the middle of Fatu Band 3 (dealing in between 250 grams and 500 grams of methamphetamine in total).

[75]     I am  also  satisfied  that  Mr Masters  enjoyed  leadership  status  among  the group associated with the Killer Beez gang who were convicted at trial along with Nguyen and in other criminal proceedings.   That is an aggravating feature of his

overall offending.

10 Discussed at [9] above.

[76]   I coming to these conclusions I have not overlooked the evidence and submissions related to the absence of drugs paraphernalia or large quantities of cash having been seized by the Police at the time of Mr Masters’s arrest.  But observe that that is not an unusual feature of cases of this kind and I note, in any event, that substantial amounts of cash were seized at 9 Collett Road at the time of Mr Masters’s arrest.

Money laundering (count 25)

[77]     Mr Masters’s denial of any knowledge that money derived from drug dealing activities was being used to support the Colourways Records business is entirely inconsistent with his guilty plea and I reject it.  It is a reasonable inference from the evidence, including that related to conversations held by an associate, Adam Nelson, that drug money was used to support the business.

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Toogood J