Mundell v The Queen

[2018] NZHC 2717

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2018-404-000248

[2018] NZHC 2717

BETWEEN

ANDREW PHILIP MUNDELL

Appellant

AND

THE QUEEN

Respondent

Hearing:	16 October 2018
Counsel:	PK Hamlin for Appellant NE Town for Respondent
Judgment:	19 October 2018

JUDGMENT OF DOWNS J

This judgment was delivered by me on Friday, 19 October 2018 at 3 pm.

Registrar/Deputy Registrar

Solicitors/Counsel:

Crown Solicitor, Auckland. PK Hamlin, Auckland.

MUNDELL v R [2018] NZHC 2717 [19 October 2018]

The appeal

[1]    Mr Mundell pleaded guilty to a charge of importing the Class A controlled drug, methamphetamine. Judge  D J  Sharp  sentenced  Mr  Mundell  to  a  term of  30 months’ imprisonment.1 He appeals. Mr Mundell contends the Judge erred when determining the factual basis for sentencing by reversing the burden of proof, and imposed a manifestly excessive sentence. For reasons that will become apparent, only the first argument need be addressed.

Background

[2]    On 30 June 2017, Mr Mundell arrived in New Zealand from Canada. He earlier swallowed 102 packages, containing 154 grams of methamphetamine. The importation went undetected—for nine days. But, Mr Mundell could not pass the drugs. On 10 July 2017, he went to a doctor in great pain. The doctor called an ambulance. Mr Mundell underwent emergency surgery. The methamphetamine was removed from his body. And, seized by Police.

[3]    Two charges were laid. Importing a Class A controlled drug, and possessing that drug for supply. The latter attracted, by considerable margin, the presumption under s 6(6) of the Misuse of Drugs Act 1975. So, if the Crown proved in relation to this charge Mr Mundell was in possession of the methamphetamine—as clearly it would—Mr Mundell would be deemed to possess it for supply. However, the Crown offered to withdraw this charge if Mr Mundell pleaded guilty to importing the drug. Mr Mundell did.

[4]    Mr Mundell contended all the methamphetamine was for his personal use. The Judge  convened  a  disputed-facts  hearing.2   Police  witnesses  testified,  as  did    Mr Mundell and others.

1      R v Mundell [2018] NZDC 14965.

2      R v Mundell [2018] NZDC 20659.

[5]    The Judge concluded Mr Mundell was addicted to methamphetamine. But, the Judge also concluded Mr Mundell had not established on the balance of probabilities there was not “some commercial aspect to this importation”.3

Misapplication of s 24 of the Sentencing Act?

[6]    Mr Hamlin contends the Judge erred because he did not approach his task in accordance with s 24 of the Sentencing Act 2002. This provides:

24   Proof of facts

(1)   In determining a sentence or other disposition of the case, a court—

(a)may accept as proved any fact that was disclosed by evidence at the

… trial and any facts agreed on by the prosecutor and the offender; and

(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2)   If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—

(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the … trial:

(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:

(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:

(e)either party may cross-examine any witness called by the other party.

(3)   For the purposes of this section,—

aggravating fact means any fact that—

3      R v Mundell, above n 2, at [14].

(a)the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

mitigating fact means any fact that—

(a)the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and

(b)the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.

[7]    Mr Hamlin submits the disputed fact concerned commerciality, which was either an aggravating fact within subs (c) or a disputed mitigating fact relating to the nature of the offence, again within subs (c). Either way, the onus of proof rested on the Crown, not Mr Mundell.

[8]    Mr  Hamlin  acknowledges  this  argument  would  not  be  available  had   Mr Mundell pleaded guilty to possessing methamphetamine for supply, or been found guilty of that charge.   Had either occurred, s 24(1)(b) would bite.   This because    Mr Mundell’s claim would be irreconcilable with the ingredients of the charge: possession for supply. Mr Hamlin emphasises this is not what happened—that charge was dropped.

[9]    Mr Hamlin submits the presumption does not attach to a charge of importing a controlled drug, and the ingredients of such a charge say nothing about commerciality. Consequently, the Crown need not establish a defendant imported a controlled drug intending to supply it. Liability arises through importation alone. Purpose is irrelevant, save at sentencing.

[10]   Ms Town resists this analysis on behalf of the Crown. She argues the presumption applied notwithstanding the withdrawn charge, because the evidence adduced in relation to the importation charge established Mr Mundell was in possession of 154 grams of methamphetamine. Ms Town also submits the disputed fact was whether Mr Mundell was addicted to methamphetamine, a personal mitigating factor governed by s 24(2)(d).

[11]I accept Mr Hamlin’s analysis for five reasons.

[12]   First, s 6 of the Misuse of Drugs Act confines the presumption to a charge of possession of a controlled drug for supply (sale, or administration). Its relevant aspects read:4

6     Dealing with controlled drugs

(1)   Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—

(a)import into or export from New Zealand any controlled drug; or

(b)Produce or manufacture any controlled drug; or

(c)Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or

(d)Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or

(e)Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or

(f)Have any controlled drug in his possession for any of the purposes set out in paragraphs (c), (d), or (e) of this subsection.

(2)   Every person who contravenes subsection (1) of this section commits an offence against this Act and is liable on conviction … to—

(a)Imprisonment for life where a Class A controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:

(b)Imprisonment for a term not exceeding 14 years where paragraph

(a)   of this subsection does not apply but a Class B controlled drug was the controlled drug or one of the controlled drugs in relation to which the offence was committed:

(c)Imprisonment for a term not exceeding 8 years in any other case.

...

(6) For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).

4      Emphasis added.

[13]   I accept it is possible to read s 6(6) in the manner identified by Ms Town, because the opening words of the provision refer to the purposes of s (1)(f), and that subsection creates a prohibition on possession for supply, irrespective of whether that charge is laid. But, this interpretation is unsupported by authority. And practice.

[14]   Second, this interpretation would extend the effect of the presumption whenever evidence established the defendant’s possession of the requisite amount, even though the Crown had, for whatever reason, elected not to bring a corresponding charge. This indeterminate reach sits awkwardly with the presumption of innocence, a fundamental right affirmed by the New Zealand Bill of Rights Act 1990,5 and the Supreme Court’s decision in Hansen v R, in which a majority of that Court held s 6(6) potentially inconsistent with the presumption of innocence.6

[15]   Third, such reach would also compromise another important right affirmed by the New Zealand Bill of Rights Act: “benefit of a trial by jury”.7 To elaborate, if the possession for supply charge had not been withdrawn, Mr Mundell would have confronted the presumption at trial, but with a jury. On the Crown’s interpretation, Mr Mundell must still confront it—without one.

[16]   Fourth, Mr Hamlin’s analysis is consistent with s 24 of the Sentencing Act. It bears repeating if Mr Mundell had pleaded guilty to or been found guilty of possession of methamphetamine for supply, that offence would, because of s 24(1)(b), preclude an argument all the drugs were for personal use. Conversely, the Crown’s interpretation of the presumption is difficult to reconcile with the regime created by  s 24. While importations of controlled drugs are almost always for a commercial purpose, purpose is not an ingredient of the offence of importation. Consequently, commerciality is an aggravating factor in this context, and one governed by s 24(1)(c). All of which means the Crown bears the onus of proof, not the defendant, to the criminal standard, not civil.

5      Section 25(c).

6      Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

7      Section 24(e).

[17]   Fifth, Mr Hamlin’s analysis is consistent with the guideline judgment of the Court of Appeal in R v Fatu.8 The lowest bands in Fatu reflect the presumption, and a related appellate assumption defendants in possession of more than presumption quantities will face a corresponding charge of possession for supply.9 Equally, the Court of Appeal in Fatu emphasised the importance of disputed aggravating facts being proved beyond reasonable doubt.10

[18]   This leaves only Ms Town’s argument the Judge did not err because the contest was about whether Mr Mundell was an addict. I accept an issue of this nature could be a mitigating fact “not related to the nature of the offence or to the offender’s part in the offence”, hence one that must be proved by the defendant on the balance of probabilities. But, this argument goes nowhere. The Judge found Mr Mundell was addicted to methamphetamine, but also found Mr Mundell had not disproved commerciality. And, the latter was the real contest: were the drugs, or at least some of them, for supply?

[19]   Some final observations. None of this is a criticism of the Judge. In the District Court, Mr Hamlin accepted Mr Mundell bore the onus of proof. That concession led the Judge into error.

[20]   It is important to be clear what this judgment holds, and what it does not. It holds the presumption under s 6(6) of the Misuse of Drugs Act applies only when the defendant faces a corresponding charge of possession for supply (sale, or administration) of a controlled drug, and possession of the requisite amount is established by the prosecution beyond reasonable doubt. It does not hold possession of a controlled drug in a quantity above the presumption is irrelevant when determining the purpose for which the defendant had the drug, including commerciality. Less abstractly, when the case returns to Judge Sharp, it will be open to him, in determining whether the Crown has proved a commercial purpose beyond reasonable doubt, to place weight on the fact Mr Mundell was in possession of

8      R v Fatu [2006] 2 NZLR 72 (CA).

9 At [36].

10     At [30], [32] and [38].

154 grams of methamphetamine; that this quantity is almost 31 times the presumption; and, on any assessment, a very large amount of a pernicious drug.

Result

[21]The appeal is allowed. Mr Mundell’s sentence is quashed.

[22]   Given the extensive evidence taken in the District Court, the case is remitted to Judge Sharp for re-assessment in accordance with s 24 of the Sentencing Act, and re-sentencing.11

……………………………..

Downs J

11     The Judge may consider the record sufficient, so the witnesses do not need to testify again. But that is for him after consultation with counsel.