Mehrtens v The Queen
[2013] NZCA 275
•3 July 2013 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA37/2013 [2013] NZCA 275 |
| BETWEEN | STEVEN JOHN MEHRTENS |
| AND | THE QUEEN |
| Hearing: | 18 June 2013 |
Court: | Stevens, Courtney and Dobson JJ |
Counsel: | P J Kaye for Appellant |
Judgment: | 3 July 2013 at 10 am |
JUDGMENT OF THE COURT
The application for an extension of time is granted but the appeal against sentence is dismissed.
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REASONS OF THE COURT
(Given by Dobson J)
On 18 December 2012, the appellant (Mr Mehrtens) was sentenced to 17 years and nine months’ imprisonment on two convictions for manufacturing methamphetamine.[1] Keane J also imposed concurrent sentences of five years’ imprisonment for conspiring to manufacture methamphetamine, five years and three years respectively for two convictions for possession of methamphetamine for supply, and two years for two convictions for supplying methamphetamine.
[1]R v Mehrtens [2012] NZHC 3511 [sentencing notes].
Mr Mehrtens appeals this sentence, contending that it is manifestly excessive because the starting point adopted was too high, and the amount of methamphetamine found by the Judge to have been manufactured could not safely be inferred on the available evidence. An aspect of this challenge was that the scale of methamphetamine held to have been manufactured was abstracted from quantities of the pre-cursor substance, pseudoephedrine, said to have been acquired by Mr Mehrtens. The conversion rate used to determine the quantity of methamphetamine derived from pseudoephedrine arguably assumed an efficiency of manufacture that would not have been achieved.
As to the circumstances of the offending, during 2009 and 2010, the police monitored the activities of a Ms Fonotia who was a supplier of pseudoephedrine. The Crown case was that Ms Fonotia was responsible for the sale of substantial quantities of pseudoephedrine on 15 separate occasions, at least seven of which were to Mr Mehrtens and his co-offender, Mr Filer.
After Ms Fonotia was arrested in February 2010, Messrs Mehrtens and Filer dealt with two others, Messrs Ly and Nguyen, who had been suppliers of pseudoephedrine to Ms Fonotia.
When the police operation monitoring these activities terminated on 17 May 2010, Mr Mehrtens was in possession of just over one kilogram of pseudoephedrine that had been supplied by Mr Ly. Mr Ly was found in possession of $51,000, inferred to be the cost of the pseudoephedrine supplied that day. Mr Mehrtens was also in possession of 5.3 grams of methamphetamine.
Mr Mehrtens absconded whilst on electronically monitored bail pending trial. His trial, along with that of other offenders charged as a result of the same activities involving manufacture and distribution of methamphetamine, including Mr Filer, proceeded in his absence. Others convicted, including Mr Filer, had also been sentenced before Mr Mehrtens was re-arrested and appeared for sentencing.
In his written submissions, Mr Kaye analysed the evidence going to the extent of either pseudoephedrine or methamphetamine that was in evidence in relation to each of the counts against Mr Mehrtens, or Messrs Mehrtens and Filer. Mr Kaye challenged both the quantity of pseudoephedrine that was obtained from Ms Fonotia, and the relative quantity of methamphetamine that could be produced from it.
Mr Kaye argued that the analysis adopted by the Crown in sentencing submissions before Keane J assumed a minimum volume of pseudoephedrine on seven occasions when Ms Fonotia sold the pre-cursor to Messrs Mehrtens and Filer.
The Crown’s submission was that Ms Fonotia would have supplied sufficient pseudoephedrine to generate a minimum of three kilograms of methamphetamine. Mr Kaye disputed that there was evidence justifying the inference of a pattern of dealing by Ms Fonotia at the level involved in that calculation. The pre-cursor substance was contained in capsules of ContacNT, with a “set” of 1,000 capsules containing 90 grams of pseudoephedrine.
The Crown’s submission on sentencing was that the evidence suggested Messrs Mehrtens and Filer purchased 98 sets, whereas Mr Kaye argued that the evidence only supported the purchase of 65 sets.
The evidence consistently advanced on behalf of the Crown in methamphetamine manufacture trials is that between 50 to 75 per cent of the weight of pseudoephedrine can be converted in the manufacturing process into methamphetamine. Mr Kaye submitted that there are grounds for challenging that rate of conversion of pseudoephedrine into methamphetamine. His written submissions referred to the United States Sentencing Commission having recently reduced the estimate of actual yield to 50 per cent of the theoretical yield, which is equivalent to 46 per cent by weight of the amount of pre-cursor involved.
There was no challenge to the conventional Crown stance, either at trial or at a disputed facts hearing on sentencing. In oral argument, Mr Kaye accepted that he could not take the point further on appeal. In those circumstances, we are not persuaded that the Judge erred in applying what is, on the basis of evidence consistent with earlier cases, a relatively settled presumption as to the relative efficiency of transformation of pseudoephedrine into methamphetamine.
Applying the currently accepted rate of conversion, even to the lower volume of 65 sets of ContacNT capsules, would result in manufacture of between 2.9 and 4.3 kilograms of methamphetamine.
We are not persuaded that the Judge erred in assessing the relative seriousness of the offending by having regard to the quantities involved. The Judge observed first that he did not accept the Crown’s calculation of all the supplies notionally possible, but that a level of inference was called for.[2] The Judge did acknowledge that Mr Kaye had taken issue with the quantities of pseudoephedrine Mr Mehrtens was said to have obtained, but also that Mr Kaye accepted that the Judge had made findings of fact on that issue. The Judge’s conclusion was expressed:[3]
On the evidence before the jury, which I believe it plainly accepted and which I myself find cogent, you obtained pseudoephedrine from your sources of supply on a scale that would have yielded methamphetamine well in excess of two kilograms and more likely three ‑ four kilograms.
[2]Sentencing notes at [8].
[3]Sentencing notes at [30].
Mr Kaye also raised a concern that the Judge’s approach involved a form of double counting. The starting points for various bands of methamphetamine offending taken from R v Fatu were set on a presumption that those manufacturing methamphetamine would have geared up and assumed the difficulties, expense and risks involved, intending to manufacture on an ongoing basis. Such commitments connote significant commerciality.[4] The “gearing up” presumption led to attributing manufacture to a more serious extent than the Crown evidence might establish in a given case. Arguably, the Crown’s estimation of methamphetamine produced involved assumptions of greater volumes than had been proven, and when the Fatu bands were applied an adverse assumption of greater volumes had been applied twice.
[4]R v Fatu [2006] 2 NZLR 72 (CA) at [42].
We do not accept that there was any such double counting. Put another way, Mr Kaye’s argument was that the Crown proved the totality of Mr Mehrtens’ offending, so that the Fatu approach of attributing a commercial enterprise likely to be of larger extent than that revealed by the evidence at trial should not have applied. That is not warranted.
Even if these criticisms of the relative seriousness of the offending were rejected, Mr Kaye also argued that, by comparison with similar sentencings, the starting point of 18 years’ imprisonment was manifestly excessive. Instead, Mr Kaye contended for a starting point of around 16 years.
In opposing the appeal, Mr Tantrum submitted that the Judge correctly treated Messrs Mehrtens and Filer as requiring comparable sentences. In Mr Filer’s case, the starting point was 18 years’ imprisonment, and whilst he commenced an appeal against sentence (in addition to an appeal against conviction) his sentence appeal was abandoned. Mr Filer’s was in a sense a companion sentencing, and any brevity in the analysis of the relative seriousness of Mr Mehrtens’ offending was warranted in light of the analysis undertaken for the earlier sentencing. A consistent starting point with that adopted for Mr Filer was clearly justified.
The Judge was correct to treat the convictions for manufacturing methamphetamine as the lead convictions, and was also entitled to assess the seriousness of that offending by considering the yield to be well in excess of two kilograms of methamphetamine and more likely three to four kilograms.
Having decided to impose lesser, concurrent, sentences on the significant array of other convictions on which Mr Mehrtens was being sentenced, that remaining offending was appropriately seen as an aggravating feature influencing the starting point on the lead sentence. If the sentencing Judge had adopted a starting point of 16 to 16.5 years on the lead conviction alone, then the totality principle would have required an uplift to reflect the gravity of the offending for which concurrent sentences were being imposed. In oral argument, Mr Kaye was unable to dissuade us from this analysis.
In all the circumstances, we are satisfied that the Judge was correct in setting an 18 year starting point on the lead convictions, on the basis that he did.
In the absence of mitigating circumstances, the only discount recognised was for a period on electronically monitored bail of three months, before Mr Mehrtens absconded. This was also consistent with the approach adopted for Mr Filer. The reduction of three months on this ground to an end sentence of 17 years and nine months was appropriate.
The application for an extension of time is granted but the appeal against sentence is dismissed.
Solicitors:
Crown Solicitor, Auckland for Respondent