Mehrtens v The Queen - [2013] NZCA 275

IN THE COURT OF APPEAL OF NEW ZEALAND

CA37/2013
[2013] NZCA 275

BETWEEN	STEVEN JOHN MEHRTENS Appellant
AND	THE QUEEN Respondent

Hearing:	18 June 2013
Court:	Stevens, Courtney and Dobson JJ
Counsel:	P J Kaye for Appellant B D Tantrum and H J Musgrave for Respondent
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…

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.

Continue reading Mehrtens v The Queen

Details

AGLC: Mehrtens v The Queen [2013] NZCA 275
Case: [2013] NZCA 275
Decision Date: 3 July 2013 at 10 am

CaseChat Overview and Summary

In Mehrtens v The Queen, the appellant, Steven John Mehrtens, sought to appeal his sentence for manufacturing methamphetamine, contending that it was manifestly excessive. The case was heard in the Court of Appeal of New Zealand by Stevens, Courtney, and Dobson JJ. Mehrtens was sentenced to 17 years and nine months' imprisonment on two convictions for manufacturing methamphetamine. The appeal focused on the starting point adopted for sentencing and the inference made by the Judge regarding the amount of methamphetamine manufactured.

The legal issues before the court were whether the starting point for sentencing was too high and if the amount of methamphetamine found could be safely inferred from the available evidence. Mehrtens argued that the Judge's starting point of 18 years was excessive, and the conversion rate used to determine the quantity of methamphetamine derived from pseudoephedrine assumed an efficiency of manufacture that would not have been achieved. The court considered the Crown's argument that the Judge's approach was correct, and the sentencing was proportionate to the offending.

The court found that the Judge's assessment of the relative seriousness of the offending, considering the quantities involved, was appropriate. The court was not persuaded that the Judge erred in applying the relatively settled presumption as to the efficiency of transformation of pseudoephedrine into methamphetamine. The court also rejected the argument that there was any double counting in the Judge's approach. The court concluded that the Judge was correct in setting an 18-year starting point on the lead convictions, and the reduction of three months for the time spent on electronically monitored bail was appropriate. The appeal against the sentence was dismissed, and the application for an extension of time was granted.

Orders