O'Carroll v R

IN THE COURT OF APPEAL OF NEW ZEALAND

CA620/2015
[2016] NZCA 510

BETWEEN	DAVID GERRARD O’CARROLL Appellant
AND	THE QUEEN Respondent

CA641/2015
BETWEEN	MICHAEL JOSEPH CAVANAGH Appellant
AND	THE QUEEN Respondent

CA687/2015
BETWEEN	NIGEL JOHN BOWKER Appellant
AND	THE QUEEN Respondent

CA54/2016
BETWEEN	SHANNON STEVENS Appellant
AND	THE QUEEN Respondent

Hearing:	8–10 August 2016
Court:	Winkelmann, Williams and Collins JJ
Counsel:	R M Mansfield for Mr O’Carroll S J Bonnar QC and C S Fredric for Mr Cavanagh J G Krebs and G C Gotlieb for Mr Bowker T M Cooper for Ms Stevens K S Grau for Respondent
Judgment:	20 October 2016 at 11.30 am

JUDGMENT OF THE COURT

AMr O’Carroll’s appeal against conviction is dismissed.

B Mr Cavanagh’s appeal against sentence is allowed in part.

CMr Cavanagh’s minimum period of imprisonment of two years and 11 months is quashed.
DMr Bowker’s appeal against sentence is dismissed.
EMs Stevens is granted an extension of time in which to appeal.
F Ms Stevens’ appeal against sentence is allowed.
G Ms Stevens’ sentence of 15 years and nine months’ imprisonment with a minimum period of imprisonment of seven years and 10 months is quashed.
HMs Stevens is re-sentenced to a period of imprisonment of 13 years and six months with a minimum period of imprisonment of six years and nine months.

____________________________________________________________________

REASONS OF THE COURT

(Given by Winkelmann J)

Table of Contents

Para No
Introduction  [1]
Mr Cavanagh’s sentence appeal  [3]
           Offending for which Mr Cavanagh was sentenced  [4]
           Grounds of appeal  [14]
           Ground of appeal: Starting point too high  [15]
           Ground of appeal: Uplift of 18 months to reflect other offending
            too great  [26]
           Ground of appeal: Discount for time spent remanded in custody
            on recall  [28]
           Ground of appeal: The Judge failed to adequately adjust the
            sentence to ensure that the totality of the sentence imposed
            was not too great  [31]
           Ground of appeal: Minimum period of imprisonment                   [39]
           Result on Mr Cavanagh’s sentence appeal  [42]
Mr Bowker’s sentence appeal  [43]
           Ground of appeal: Starting point  [50]
           Ground of appeal: Insufficient credit given for personal
            rehabilitation and time spent on restrictive bail conditions         [54]
           Ground of appeal: Insufficient credit given for discount for
            guilty pleas  [60]
Ground of appeal: Imposition of minimum period of
            imprisonment was not appropriate  [63]
           Result on Mr Bowker’s sentence appeal  [67]
Mr O’Carroll’s conviction appeal  [68]
First ground of conviction appeal: Verdict unreasonable on the
March manufacturing charge  [72]

Analysis — Co-conspirators issue  [81]
           Analysis — Sufficient evidence  [89]
           Second ground of conviction appeal: Propensity direction           [97]
           The treatment of the propensity evidence at trial  [99]
           Third ground of conviction appeal: New evidence  [108]
           Analysis  [118]
           Result on Mr O’Carroll’s conviction appeal  [125]
Ms Stevens’ sentence appeal  [126]
Extension of time to appeal  [126]
           Background facts[127]
           First ground of appeal: Guilty plea at first reasonable
            opportunity?  [132]
           Second ground of appeal: Plea at first reasonable opportunity
            in light of counsel’s failure to follow instructions  [135]
The evidence  [136]
           Discussion  [141]
           Result on Ms Stevens’ sentence appeal  [165]
Summary of results  [166]

Introduction

The appellants were members of a group involved in the manufacture and distribution of methamphetamine in and around Auckland. They were charged, along with others, following a police investigation codenamed Operation Genoa. The police intercepted the group’s communications, monitored their movements and undertook covert searches to uncover evidence of the group’s operations. Operation Genoa terminated on 5 May 2014 when police searched a property and interrupted Mr Bowker and Mr O’Carroll manufacturing methamphetamine.
Other than Mr O’Carroll, all of the appellants pleaded guilty to charges flowing from the police operation and were sentenced. Mr Bowker, Mr Cavanagh and Ms Stevens appeal the sentences imposed upon them while Mr O’Carroll appeals his conviction. Although an appeal against sentence was lodged by Mr O’Carroll, he abandoned it prior to the hearing.

Mr Cavanagh’s sentence appeal

At the time of committing the relevant offences, Mr Cavanagh was on parole in respect of earlier offending. Rodney Hansen J had sentenced Mr Cavanagh to 12 years’ imprisonment in May 2005 for methamphetamine-related offending,[1] and Mr Cavanagh was on parole in respect of that sentence at the time of his latest bout of offending.

Offending for which Mr Cavanagh was sentenced

[1]R v Cavanagh HC Auckland CRI-2002-004-206137, 20 May 2005 at [57].

In 2015 Mr Cavanagh pleaded guilty to 11 offences as follows:
(a)supplying in excess of two kilograms of the class B controlled drug ephedrine and possessing materials capable of being used to manufacture methamphetamine on 23 April 2014;
(b)money laundering on five occasions between 7 May 2012 and 11 March 2014 to purchase his home and four cars using drug offending proceeds;
(c)possessing a 9 mm Ruger pistol on 26 March 2014 and a .35 mm Baby Browning on 21 May 2014; and
(d)fraudulently obtaining a driver’s licence under a false name on 7 July 2011 and making a false statement to obtain a New Zealand passport under a false name on 20 May 2013.
He pleaded guilty on the basis of a summary of facts which detailed that, in July 2011, he applied for a New Zealand driver’s licence using a false identity. He then used that licence to purchase property, register motor vehicles, and open safety deposit boxes and bank accounts in order to conceal cash and assets. Through a series of five purchases of property and motor vehicles, he then laundered the proceeds of drug offending. The total amount of money involved in the purchases was $719,000.
In March 2014 police covertly searched a unit in Parnell in the name of Mr Cavanagh’s mother-in-law and in which Mr Cavanagh and his wife stored items. Those items included a 9 mm Ruger pistol, a large amount of cash and a police shirt.
On 17 April 2014 police covertly searched a storage unit in Panmure, rented by Mr Cavanagh’s wife under a false name. They found four plastic bags of the class B controlled drug ephedrine. This ephedrine weighed in total approximately two kilograms and was capable of yielding in excess of one kilogram of methamphetamine. They also found several five-litre containers of iodine and hypophosphorous acid, capable of being used in the manufacture of methamphetamine.
On 5 May 2014 police located a New Zealand passport containing Mr Cavanagh’s photograph but bearing an unrelated name. The passport had been issued to Mr Cavanagh in May 2013.
Later in the same month, police again searched Mr Cavanagh’s address under warrant and found a floor safe in the hallway under the carpet in which there was a .35 mm Baby Browning pistol and ammunition. The police also found cash, ingots and medallions.
Keane J sentenced Mr Cavanagh to five years and 10 months’ imprisonment with a minimum period of imprisonment of two years and 11 months, imposed cumulatively on the previous sentence of 12 years’ imprisonment.[2]
[2]R v Cavanagh [2015] NZHC 2498 at [48] and [53].
The Judge adopted a starting point of seven years on the basis that Mr Cavanagh was the primary actor and the offence involved the supply of two kilograms of ephedrine.[3] In doing so, he accepted that Mr Cavanagh held the ephedrine as security for a debt owed to him. The Judge said:
[32] Even if you held the ephedrine as security for a debt, you knew its value and purpose. That was why you must have known it was good security. You knew what it was going to be used for when you returned it. The money you were owed, as I have been told, arose from prior drug offending and was a species of laundering. …
[3]At [31].
Although he thought the additional offending justified a further uplift in the range of 18 to 24 months, in light of totality principles, he settled on 18 months.[4] He uplifted a further nine months to recognise that the offences were committed whilst Mr Cavanagh was on parole.[5]
[4]At [34].
[5]At [37].
The Judge then allowed a one-month discount for personal circumstances[6] and a 17-month discount in recognition of the 17 months Mr Cavanagh spent remanded in custody on recall.[7] He then allowed a 25-per-cent guilty plea discount,[8] producing an end sentence of five years and 10 months’ imprisonment. A 50‑per‑cent minimum period of imprisonment was imposed: two years and 11 months.

Grounds of appeal

[6]At [40].

[7]At [42].

[8]At [47].

Mr Cavanagh appeals on the ground that the sentence imposed was manifestly excessive for the following reasons:
(a)the starting point of seven years was too high;
(b)the uplift of 18 months to reflect other offending was too great;
(c)the discount for time spent remanded in custody on recall should have been applied after the guilty plea discount, rather than before;
(d)the Judge failed to adequately adjust the sentence to ensure that the totality of the sentence imposed was not too great; and
(e)a minimum period of imprisonment should not have been imposed and the extent of that minimum period was, in any event, manifestly excessive.

Ground of appeal: Starting point too high

Counsel for Mr Cavanagh, Mr Bonnar QC, argues that the seven-year starting point the Judge adopted was too high in view of the relevant tariff case for class B drug offending, R v Wallace,[9] and in view of other sentences imposed for comparable offending.
[9]R v Wallace [1999] 3 NZLR 159 (CA).
He highlights that the supply offence was a one-off transaction. He says the storage unit was rented on 7 April 2014 and the ephedrine was transported there from an unknown location prior to 17 April. On 23 April it was supplied to others in a single transaction. Accordingly, the offending did not “extend over a period of time” and ought to have been placed in the lowest band of Wallace. Moreover, the circumstances where the ephedrine was taken as security for a debt do not suggest a sustained and organised drug-dealing operation. Although Mr Cavanagh was under surveillance from mid-to-late 2013 until May 2014, and was for several months subject to electronic interception warrants on his mobile phones, no evidence was obtained linking him to any other drug-dealing offences.
R v Wallace identifies two categories of offending relevant to this appeal:
[31] Commercial manufacture or importation on a substantial scale reflecting sophistication and organisation with operations extending over a period of time though not involving massive quantities of drugs or prolonged dealing calls for a starting point in the range five to eight years.
[32] For smaller operations, but representing commercial dealing, starting points of up to five years are appropriate. This necessarily must be a broad category to enable sentences to reflect the many varied circumstances that can arise.
The first category is the one in which the Judge placed Mr Cavanagh’s offending[10] and the second is the category in which Mr Bonnar submits it should have been placed.
[10]R v Cavanagh, above n 2, at [32].
We accept the particular offending did not occur over a lengthy period of time. However, we bear in mind the comments made by this Court in R v Wang as to the need for flexibility in the application of the sentencing guidelines in Wallace:[11]
[22] Plainly circumstances will vary from case to case and there is a need for flexibility in the application of these sentencing guidelines. This is particularly so where the bands are expressed with epithet-based descriptors rather than quantities as in R v Fatu. Quite apart from the nature and size of the transaction, the role of the offender will often be an important consideration.
[11]R v Wang [2014] NZCA 409 (footnotes omitted).
We consider the Judge was correct in the starting point he selected. Mr Cavanagh was in possession of a commercial quantity of pseudoephedrine. He sought and used that possession for personal gain — to obtain security for payment to him of a drug debt. And as the Judge commented, Mr Cavanagh acted with full knowledge of all the implications of the supply of pseudoephedrine.[12] He was the primary offender in these events and drew his wife and other family members into his offending.
[12]R v Cavanagh, above n 2, at [32].
Mr Bonnar points to other authorities as inconsistent with the starting point adopted. We do not consider that the authorities he refers to support the submission of inconsistency. In R v Ha,[13] a starting point of four years was adopted by Andrews J where there had been two supplies of pseudoephedrine, with a known amount of 1.2 kilograms.[14] But, as the Judge found, Mr Ha was acting on the instructions of others.[15] He was not the primary offender. In R v Afakasi,[16] when sentencing Mr Sililoto for offending involving around four kilograms of pseudoephedrine, Toogood J adopted a starting point of seven years’ imprisonment.[17] However, Mr Sililoto’s involvement in the offending was as a courier and driver and he was sentenced on the basis that he received a very modest benefit from that offending: just the use of a motor vehicle.[18] Mr Sililoto’s co-offender, Mr Abel, was sentenced on the basis of a starting point of four years’ imprisonment for offending involving 1.78 kilograms of pseudoephedrine.[19] Again, he was a minor player in the offending and his involvement was limited to conduct on a single day.
[13]R v Ha [2014] NZHC 2621.
[14]At [15].
[15]At [3].
[16]R v Afakasi [2014] NZHC 2907.
[17]At [47].
[18]At [42] and [46].
[19]At [111].
It is also true that in Tilialo-Staples v Police[20] a starting point of only four years was adopted in respect of 21.9 kilograms of pseudoephedrine.[21] But the facts in that case were quite unusual. Mr Tilialo-Staples was paid $500 to store a machine at his parents’ house for only a few hours. Although he knew he was involving himself in an illegal transaction, he did not know what was inside the machine.
[20]Tilialo-Staples v Police [2013] NZHC 1255.
[21]At [24].
None of those sentenced in the cases cited by Mr Bonnar were primary offenders. Although the circumstances of Mr Cavanagh’s offending are a little unusual, we think it correct to categorise him as a primary offender. Using pseudoephedrine as security for a loan is trading in the substance.
Mr Bonnar advances an alternative argument on the basis of an absence of parity with the sentence imposed on Mr Cavanagh’s co-offender, his wife, Mrs Victoria Cavanagh.[22] Counsel submits that Mr Cavanagh’s culpability was not so much greater than his wife’s to justify a disparity of two years in the starting point. It was Mrs Cavanagh who rented the storage unit in which the ephedrine was stored under a false name. He says the two travelled to the unit together and it was Mrs Cavanagh who took the ephedrine out of the unit and placed it in the vehicle, knowing it was to be supplied to others.
[22]R v Cavanagh [2015] NZHC 2437.
When sentencing Mr Cavanagh, Keane J said he had adopted the five-year starting point for Mrs Cavanagh on the basis that Mr Cavanagh was the primary offender. Consistently, he treated Mr Cavanagh as the primary offender when selecting a starting point that was two years higher than Mrs Cavanagh’s.[23] He was correct to do so. The debt to be secured was Mr Cavanagh’s. It was he who arranged the transaction from beginning to end, even if Mrs Cavanagh helped him with arrangements. The culpability of the offender is a critical consideration in sentencing and a court is justified in making significant adjustments to a starting point to reflect greater or lesser culpability.

Ground of appeal: Uplift of 18 months to reflect other offending too great

[23]R v Cavanagh, above n 2, at [31].

Mr Bonnar submits that the uplift of 18 months the Judge applied for the other offending was too great. He says that co-offenders such as Ms Stevens and another co-offender, Mr Shaw, received a lesser percentage uplift for other offending.
We consider the uplift was well within the available range. As the Crown submits, there were five significant money-laundering transactions involving large sums of money. There was also associated firearms offending. This Court has indicated that uplifts of 12 to 18 months are appropriate for firearms offending associated with drug dealing.[24] As to the comparison with Mr Cavanagh’s co‑offenders, the uplifts applied in those cases were in respect of a different range of offences. Moreover, as Mr Bonnar himself acknowledges, making a case for lack of parity based on a percentage uplift faces the difficulty that the impact of a percentage uplift depends upon the starting point taken for the principal offence. If the starting point is high, a substantial uplift in sentence may be applied yet the percentage uplift may appear relatively small.

Ground of appeal: Discount for time spent remanded in custody on recall

[24]Mills v R [2016] NZCA 245 at [18] citing Fonotia v R [2007] NZCA 188, [2007] 3 NZLR 338 at [41]; and Haggie v R [2011] NZCA 221 at [23].

Mr Bonnar submits the Judge plainly intended to give Mr Cavanagh a 17‑month credit for time spent on recall as that was a credit for the entire period of time spent on recall. However, by applying that discount before application of a guilty plea discount he gave a less than one-for-one credit. To give effect to his intention to give full credit, the Judge should have applied the credit after the guilty plea discount.
We see nothing in the Judge’s sentencing remarks to indicate he gave a lesser credit than intended for time spent on recall. We accept the Judge did say “I have decided that in your case the preponderance of authority favours in your case a full 17 month discount.”[25] But that was in the course of a conventional sentencing exercise in which a Judge, after having heard from counsel, settles upon the appropriate level of credits and uplifts in producing a figure to which a guilty plea discount is applied. In using the word “full” the Judge was simply rejecting an argument that the discount should have been less than 17 months. In any case, we think the discount provided was generous.
[25]R v Cavanagh, above n 2, at [42].
Previous offending may be an aggravating factor in sentencing justifying an uplift in sentence. Committing further offences while on parole for previous offending is seen as doubly aggravating. However, the courts have recognised the need to temper the sentencing uplift where the offender has been recalled to prison to continue serving the earlier sentence. That does not require a one-for-one credit[26] but simply care to ensure the uplift for previous offending and offending while on parole is not too great. Against this background the reduction allowed by the Judge was generous, given that he applied a relatively modest uplift for Mr Cavanagh’s earlier offending: only nine months.[27]

Ground of appeal: The Judge failed to adequately adjust the sentence to ensure that the totality of the sentence imposed was not too great

[26]See Oliver v R [2014] NZCA 285 at [9].

[27]R v Cavanagh, above n 2, at [37].

The sentence that Keane J imposed for the lead offence, supply of ephedrine, was imposed cumulatively on Mr Cavanagh’s existing sentence.[28] Mr Bonnar submits that the sentence should be adjusted downward in application of the totality principle set out in s 85(2) of the Sentencing Act 2002. This principle provides that, if cumulative sentences are imposed, they must not result in a total period of imprisonment “wholly out of proportion to the gravity of the overall offending”. Mr Bonnar says this principle was not applied in this case and, if it was, there would have been a reduction in the overall sentence. If Mr Cavanagh had been sentenced on one occasion for the offending he was sentenced for in 2005 and the offending he was sentenced for by Keane J, a lesser total sentence would have resulted. Mr Bonnar suggests a sentence of around 15 years would have been appropriate rather than the 17 years and 10 months produced by the present sentence structure.
[28]At [48].
In 2005 Rodney Hansen J sentenced Mr Cavanagh on the basis that he was a significant participant in a criminal enterprise, manufacturing and selling very significant commercial quantities of methamphetamine.[29] He sentenced Mr Cavanagh on the basis that he manufactured and sold methamphetamine which generated more than $1 million in profit over a period of 12 to 18 months.[30] During most of that time methamphetamine was a class B drug but, for part of the time at least, it was a class A drug. When the operation was brought to an end the police seized methamphetamine with a street value of between $215,000 and $323,000. The precursor substances found in Mr Cavanagh’s possession would have produced methamphetamine with a street value of between $275,000 and $625,000. Mr Cavanagh was also sentenced for being in possession of firearms.
[29]R v Cavanagh, above n 1, at [36].
[30]At [37].
The offending for which Mr Cavanagh was sentenced in 2005 occurred in two distinct time periods. Mr Cavanagh manufactured and supplied methamphetamine on a very large scale before and into 2002. Then, while on bail, he and Ms Stevens absconded and committed further offences while on the run.
We agree that Keane J had to undertake a totality assessment before imposing sentence in this last round. Although on the way through the Judge made reference to totality in setting various components of the sentence, he did not undertake a final check in accordance with the requirements of s 85. But a mistake in methodology is not, on its own, grounds for a successful appeal. The critical issue is whether the final sentence imposed, when added to the existing sentence, was manifestly excessive. We do not think it was.
The offending involved in the combined sentencing exercises of Rodney Hansen J and Keane J comprised large-scale, methamphetamine-related offending that produced very substantial profit for Mr Cavanagh. It involved three episodes of offending divided by time and by intervening criminal proceedings.
We take into account that most of the offending for which Mr Cavanagh was sentenced in 2005 was class B offending (methamphetamine offending was reclassified as class A offending in 2003),[31] and the most recent drug offending also involved a class B drug. But Mr Cavanagh must also be held accountable for the firearms and money‑laundering offending. Although the money that was involved in the money laundering was from the offending in the preceding decade, there is additional criminality involved in this. After Mr Cavanagh was released from prison he attempted to retain his ill-gotten gains from the earlier drug offending through the money‑laundering activities he engaged in.
[31]Misuse of Drugs (Changes to Controlled Drugs) Order 2003, cl 4.
The sentence also has to reflect the persistence of Mr Cavanagh’s offending and that some of it took place while on bail and on parole.
Weighing these matters together we consider that a total sentence of 17 years and 10 months is not disproportionate to the totality of the offending to which that sentence relates — three active phases of serious offending. Although the Judge did not undertake the final s 85 check, this omission did not result in a sentence that was manifestly excessive.

Ground of appeal: Minimum period of imprisonment

Mr Bonnar submits that the minimum period of imprisonment imposed by the Judge has no effect and should be removed. This is because, applying s 84 of the Parole Act 2002, the non-parole period will have expired before the sentence commences. Section 84(4) provides:
(4)The non-parole period of a long-term notional single sentence is the total obtained by adding together all the non-parole periods of every sentence that makes up the notional single sentence.
Mr Bonnar submits that since the non-parole period on Mr Cavanagh’s first sentence is four years (one third of his 12 year sentence)[32] and on the second sentence is two years and 11 months, the non-parole period of his notional single sentence is therefore six years and 11 months. As Mr Cavanagh’s first sentence was imposed in 2005, this non-parole period expired several years before the Operation Genoa investigation began and Mr Cavanagh is immediately eligible for parole having been sentenced in 2015.
[32]Parole Act 2002, s 84(1).
We agree that a minimum period of imprisonment which is of no effect should not be imposed and should be quashed. Given the length of the sentence to which Mr Cavanagh is now subject, and given the period of imprisonment he has already served, we do not consider it is necessary for the purposes of public safety, deterrence or accountability to impose a minimum period of imprisonment.

Result on Mr Cavanagh’s sentence appeal

The only meritorious argument advanced by Mr Cavanagh on his sentence appeal is that in relation to the imposition of a minimum period of imprisonment. We therefore allow the appeal against sentence to the extent only of quashing the minimum period of imprisonment imposed by Keane J.

Mr Bowker’s sentence appeal

Mr Bowker pleaded guilty to three charges of manufacturing methamphetamine, the details of which are as follows:
(a)February 2014 — quantity unknown;
(b)March 2014 — 830 grams; and
(c)May 2014 — 500 grams.
The March and May occasions of manufacturing took place at a large rural address on which there were several buildings, including one in which Mr O’Carroll was living at the time. The Crown case was that, on 5 May 2014, the police interrupted Mr Bowker and Mr O’Carroll manufacturing methamphetamine.
Mr Bowker was sentenced following a disputed-facts hearing.[33] His evidence was that his role in the February and March manufacturing was limited to driving a trailer to and from the property and allowing use of his storage facility.[34] He did not know the manufacturing was taking place on the first two occasions, he only had suspicions. He was paid for his work with drugs and his involvement was addiction driven. The position changed with the May manufacturing because when Mr Bowker arrived at the property Mr O’Carroll said to him that he may as well stay and help. Mr Bowker’s fundamental propositions were that he was manipulated by his co‑offender, Mr O’Carroll, and that he was a minor player whose offending was addiction driven.
[33]R v Bowker [2015] NZHC 2365.
[34]At [10] and [12].
Peters J, who presided at the disputed-facts hearing, rejected Mr Bowker’s evidence that he was a minor player in the methamphetamine-manufacturing ring.[35] She characterised his evidence as falling “well short of an honest account”.[36] When later sentencing Mr Bowker, Peters J placed Mr Bowker’s offending in the highest band of the guideline judgment R v Fatu, a band which applies to the manufacture of more than 500 grams of methamphetamine.[37] But she accepted he was not a ringleader.[38] She selected a starting point of 15 years having taken into account the quantity of methamphetamine involved, the role played by Mr Bowker and the need for consistency between the sentence imposed on Mr Bowker and those imposed on his co-defendants.[39]
[35]At [13]–[14].
[36]At [13].
[37]R v Bowker [2015] NZHC 2903 at [29] citing R v Fatu [2006] 2 NZLR 72 (CA).
[38]At [31].
[39]At [34].
From that starting point the Judge reduced the sentence by eight months to reflect Mr Bowker’s efforts at rehabilitation and time spent on restrictive bail conditions,[40] and a further two months because he may have needed to be segregated in prison for his own safety.[41] She then allowed a reduction of 15 per cent for his guilty plea.[42] Through these calculations the Judge arrived at a final sentence of 12 years’ imprisonment which she imposed for the three charges of manufacturing.[43]
[40]At [39].
[41]At [41].
[42]At [42].
[43]At [43].
Mr Bowker now appeals against sentence on the grounds that the Judge erred in:
(a)adopting too high a starting point;
(b)giving insufficient credit for Mr Bowker’s efforts towards rehabilitation whilst on bail;
(c)refusing to allow a distinct discount for the restricted nature of Mr Bowker’s bail conditions;
(d)giving insufficient discount for Mr Bowker’s guilty pleas; and
(e)imposing a minimum period of imprisonment.
A ground of appeal in connection with the discount for Mr Bowker serving his sentence in segregation has been abandoned in light of new arrangements for Mr Bowker’s detention.

Ground of appeal: Starting point

In regard to the starting point, the essential point made by Mr Krebs for Mr Bowker is that the Judge made incorrect factual findings following the disputed‑facts hearing. On the evidence before her, the Judge should have been left in doubt as to whether Mr Bowker was involved in the first two occasions of manufacturing and she should have characterised his role, for the purposes of sentencing, as that of a foot soldier.
We are satisfied that the Judge accurately characterised Mr Bowker’s involvement in the offending so that it cannot be contended that the starting point she selected was too high. On the evidence she had available to her, the conclusions she reached were well justified, if not inevitable.
Mr Bowker’s characterisation of himself as a minor player faced the difficulty that police interrupted him in the process of manufacturing. His account that he was not involved in the March manufacturing was undermined by cellphone polling data which put him in the location of manufacturing at the relevant times. His evidence that he played a bit part, and that his offending was addiction driven, was further contradicted by the $50,000 in cash found when police searched his home on termination of the operation.
This ground of appeal cannot succeed.

Ground of appeal: Insufficient credit given for personal rehabilitation and time spent on restrictive bail conditions

Counsel for Mr Bowker argues that Mr Bowker should have been given greater credit for the genuine attempts he had made to rehabilitate himself, and for the time spent on restrictive bail conditions, than the eight months the Judge allowed.
Mr Krebs submits that a significant discount was warranted in respect of Mr Bowker’s attempts to rehabilitate himself, particularly given the links between his drug offending and his addiction. It is also submitted that the Judge erred in not giving a distinct credit for the restrictive bail conditions that Mr Bowker was subject to.
The facts relevant to this ground of appeal are, in brief, that Mr Bowker was in custody from his arrest on 5 May 2014 until 24 June 2014 when he was released to full-time residential treatment at Capri Hospital. He was discharged from the facility on 22 July 2014 (with a glowingly positive discharge report). He remained on 24-hour curfew at his home until 29 October 2014 when the conditions were relaxed to enable him to attend Capri for the day, twice a week. When he pleaded guilty in August 2015 he reverted to a 24-hour curfew and that continued until he was sentenced in November 2015.
We accept that Mr Bowker was subject to restrictive bail conditions, at times highly restrictive bail conditions, from 22 July 2014 until November 2015 and that some recognition of such was necessary in the sentence. We discount the period he initially spent in Capri from this. He received treatment there for his own benefit and as a matter of personal choice, even if the treatment may have been a condition of bail.
The credit given for time spent on restrictive bail conditions is for the sentencing judge’s discretion. It is difficult to assess just what credit Mr Bowker received for this as the Judge did not apportion the eight months between rehabilitation and restrictive bail conditions. In our view it was generous of the Judge to allow any credit for rehabilitation. The treatment Mr Bowker sought and offered up in mitigation addressed his addiction but because of the scale of his offending, Mr Bowker’s role in it and the cash it generated for him, it is not correct to categorise his as addiction-driven offending.
Given the duration of the restrictive terms of bail, credit of around 12 months would have been appropriate. However, even if this would have been a more appropriate level of reduction in sentence, it does not follow that the sentence appeal must be allowed. Again, the issue is whether the sentence was manifestly excessive. We return to this question shortly.

Ground of appeal: Insufficient credit given for discount for guilty pleas

The Judge allowed a discount of 15 per cent to recognise Mr Bowker’s guilty pleas. She explained the level of discount as follows:[44]
You are entitled to a reduction to reflect your guilty plea. The Crown case against you was very strong and you delayed for a considerable period before pleading guilty. That said, the Crown acknowledges that it did forego proceeding on one very serious charge, which was always in dispute, which was whether you had participated in an organised criminal group. For these matters, I am satisfied that you should receive a reduction in sentence for your guilty plea of 15 per cent.
[44]R v Bowker, above n 37, at [42] (footnote omitted).
Mr Krebs submits that Mr Bowker should have been entitled to a 25-per-cent discount because, at an early stage, it was signalled to the Crown and to the officer in charge of the case that Mr Bowker intended to plead guilty to the manufacturing offences. The obstacles to full resolution were disputed lesser charges and a still‑disputed summary of facts. Mr Krebs also argues that the Judge took into account that the Crown case was “very strong”. But Mr Shaw, Mr Bowker’s co‑offender who entered pleas at the earliest possible opportunity, was given a full 25‑per‑cent discount in circumstances where the Crown case could also be said to be strong.
We see no error in the Judge’s approach. Although Mr Bowker claims to have accepted responsibility early on for the offending, the procedural history contradicts this account. He delayed his guilty plea on the manufacturing charges. Although he says he wanted to negotiate on the lesser charges for which he did not accept responsibility, he could have entered guilty pleas while he continued to do that. Having pleaded guilty, Mr Bowker then unsuccessfully disputed the facts on which he was to be sentenced and, in pursuit of this dispute, offered an affidavit which was “well short of an honest account”. It is apparent therefore that, even after pleading guilty, Mr Bowker still did not accept the full extent of his culpability. And, as the Crown submits, Mr Bowker dragged the process out through his determined attempts to downplay his role. Mr Shaw pleaded guilty much earlier in December 2014 (Mr Bowker in August 2015) so that comparison with Mr Shaw’s sentence does not assist him. In all of the circumstances we consider the discount Mr Bowker received for his guilty plea was generous.

Ground of appeal: Imposition of minimum period of imprisonment was not appropriate

Minimum periods of imprisonment of around 50 per cent of the end sentence were imposed uniformly against all of the offenders, although a minimum period imposed on Mr Shaw was quashed on appeal.[45] Mr Bowker seeks to associate himself with Mr Shaw in that regard. On appeal, he says the mitigating circumstances which led to the quashing of that minimum period are strikingly similar to his own, the only difference being that Mr Bowker’s are more deserving of credit because of his efforts to rehabilitate himself.
[45]Shaw v R [2016] NZCA 110 at [31].
We cannot accept that submission. Mr Shaw’s circumstances were very different to those of Mr Bowker.[46] Mr Shaw was assessed as having a low risk of reoffending. He had accepted responsibility for his offending by pleading guilty at the earliest possible opportunity. He had not made any substantial commercial gain from his involvement and it was accepted his offending was connected to his addiction. He was young — 25 years of age — and he had the care of a mildly disabled child who was not his own but had been left with him by the child’s mother after his relationship with her came to an end.
[46]See at [22].
The Court was satisfied that Mr Shaw’s personal circumstances were sufficient to render a minimum period of imprisonment unnecessary for the purposes of holding Mr Shaw accountable or deterring him. Similarly, there was no need to impose a minimum period of imprisonment to protect the community from him given his circumstances and the fact he was assessed at a relatively low risk of reoffending. The remaining consideration was whether the absence of a minimum term for offending as serious as his would send an adequate deterrent signal to others. The Court was satisfied that the absence of the additional deterrent of imposing a minimum term was justified by the unusual nature of the personal circumstances; these adequately countered the argument for a minimum term.[47] The deterrent signal to others was maintained because of the unusual mitigating circumstances.[48]
[47]At [28].
[48]At [29].
Mr Bowker can point to none of these factors. The minimum period of imprisonment was appropriately imposed in this case. Mr Bowker is assessed as being at high risk of reoffending; he has offended over many years, even if previously at a low level; he did not plead guilty at the earliest possible opportunity — unsuccessfully disputing the facts on which he was to be sentenced is not conduct consistent with remorse; and there are no particular personal circumstances which take this case outside the usual. This ground of appeal must also fail.

Result on Mr Bowker’s sentence appeal

None of the grounds of appeal advanced by Mr Bowker satisfy us that the sentence of imprisonment imposed, or the minimum period of imprisonment, rendered the sentence manifestly excessive. Although a greater discount could have been allowed for time spent on restrictive bail terms, at most, Mr Bowker would have been entitled to another four months on top of the eight months allowed by the Judge for efforts at rehabilitation and restrictive bail conditions. In circumstances where the Judge allowed a generous discount for the guilty plea, the end sentence arrived at cannot be characterised as manifestly excessive.

Mr O’Carroll’s conviction appeal

Mr O’Carroll was tried along with a co-offender, Mr Terry Jones, before Peters J and a jury. He was convicted on three charges of manufacturing methamphetamine. The charges related to three occasions on which methamphetamine was manufactured at an address south of Auckland:
(a)12 March 2014 (with Ms Stevens and Messrs Bowker and Shaw);
(b)9 April 2014 (with Ms Stevens and Mr Shaw); and
(c)5 May 2014 (with Mr Bowker — the manufacturing process which was interrupted).

Mr O’Carroll was discharged on charge one, a charge of manufacturing methamphetamine on or about 28 February 2014 (with Ms Stevens and Messrs Shaw and Bowker).[49] On the other charges he was sentenced to 16 years and five months’ imprisonment with a minimum period of imprisonment of eight years and two months.[50]
[49]R v O’Carroll [2015] NZHC 2152 at [22].
[50]R v O’Carroll [2015] NZHC 2404 at [28].
Mr O’Carroll appeals against conviction on the following grounds:
(a)His conviction on the March 2014 manufacturing charge (charge 2) was unreasonable because of inadequate evidence.
(b)Evidence filed on appeal from two of his co-defendants, Ms Stevens and Mr Shaw, makes the jury verdicts on all three manufacturing charges unsafe.
(c)The Judge’s direction to the jury in relation to propensity evidence was inadequate.
Mr O’Carroll also initially appealed against sentence but has now abandoned that appeal.

First ground of conviction appeal: Verdict unreasonable on the March manufacturing charge

The issue under this ground of appeal is whether the jury verdict was unreasonable. In R v Owen, the Supreme Court articulated the test for what is an unreasonable verdict in these terms:[51]
A verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.
[51]R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [5].
The Crown case against Mr O’Carroll was constructed in this way. Mr O’Carroll was part of the group manufacturing methamphetamine. Methamphetamine was manufactured on the three charged occasions at an address south of Auckland, a rural property on which Mr O’Carroll was living at the time. The Crown relied on circumstantial evidence to show that Mr O’Carroll knew of this manufacturing and that, in respect of each of those occasions, he did something whether by way of directing operations, assisting or encouraging the manufacturing, or actively taking part in the manufacturing. The Crown relied upon Mr O’Carroll’s presence when the manufacturing process was interrupted on the termination of the operation (charge 4) to give context to much of the circumstantial evidence produced.
In broad-brush terms, the Crown case in respect of charge 2 was that, on 11 March 2014, Mr O’Carroll and Ms Stevens discussed meeting up and then did meet up later that day. The jury was invited to draw the conclusion they met from the existence of telephone polling data showing their phones in the same area at the same time. After that meeting Mr Shaw travelled to a storage unit in Glenfield and then met with Ms Stevens at Westhaven Marina. Mr Shaw and Ms Stevens then travelled to different service stations in the South Auckland area and purchased a lot of ice. Mr Shaw and Ms Stevens then travelled to a road in Whitford where the other co‑defendant, Mr Bowker, lived. In the meantime, Mr Bowker went to a storage unit to pick up a mobile methamphetamine manufacturing unit, referred to as “the trailer”.
The next morning Ms Stevens was watched by police travelling toward Mr O’Carroll’s address in the Bombay area. Telephone polling data later placed her near where Mr O’Carroll lived. Mr Bowker was polling on the same cell site. Mr O’Carroll’s telephone also polled at that site on two occasions during the same time period in which the Crown said the manufacturing took place.
Later that evening Mr Shaw and Ms Stevens dropped a chilly bin back in their storage unit. A covert search about an hour later discovered 830 grams of methamphetamine in the storage unit.
The construction the Crown asked the jury to place upon these events was that, after the meeting between Mr O’Carroll and Ms Stevens, Ms Stevens and Mr Shaw immediately gathered everything they needed to manufacture methamphetamine and then travelled to Mr Bowker’s property to deliver these materials to him. The next day, the Crown said, the four were all at the property where Mr O’Carroll lived during at least part of the manufacturing process.
Counsel for Mr O’Carroll, Mr Mansfield, acknowledges there was evidence suggesting methamphetamine was manufactured by Mr Bowker, Mr Shaw and Ms Stevens between 11 and 14 March 2014. But he submits there was no or insufficient evidence available to the jury upon which it could, if properly directed, reasonably conclude that Mr O’Carroll was involved in any way in the March offending or that he even knew about it.
Mr Mansfield submits there is no evidence to support an inference that Mr O’Carroll knew methamphetamine was to be manufactured on this occasion. There were no communications involving Mr O’Carroll during the time the trailer was moved from the storage unit. Communications in evidence involving Mr O’Carroll before and after that period do not give rise to a logical inference he was aware methamphetamine was being manufactured. The available evidence did not establish that Mr O’Carroll was at the same location as the others when the manufacturing occurred. At its highest, the prosecutor could point to polling data which indicated that, at various points of time while the trailer was away from the storage unit, Mr O’Carroll was polling in the same area as the other three. But Detective Sergeant Souter confirmed that a mobile phone could be up to 69 kilometres away from a cell site while still polling at that site. Accordingly, the polling data could not establish where the trailer and the other parties were or whether or not Mr O’Carroll was with them in the same location, at the time when the manufacturing took place.
Mr Mansfield also argues that evidence of communications between Mr O’Carroll’s alleged co-offenders should not have been before the jury and, in any case, should be put to one side by this Court when considering this ground of appeal. He says the evidential threshold for the admission of that evidence was not met.

Analysis — Co-conspirators issue

We address Mr Mansfield’s argument as to the admissibility of communications between Mr O’Carroll’s co-offenders first as that logically determines what evidence was properly before the jury. Mr Mansfield submits this was not a case in which statements of alleged co-offenders could be used in evidence against Mr O’Carroll, pursuant to the common law co-conspirators rule which provides that the declarations of one alleged co‑conspirator are admissible as evidence against another.[52] The evidence was insufficient to prove Mr O’Carroll’s membership of the conspiracy or joint enterprise.
[52]This rule is now preserved in s 12A of the Evidence Act 2006.
The Crown did close its case to the jury on the basis that there was a joint criminal enterprise involving Ms Stevens, Mr Bowker, Mr Shaw and Mr O’Carroll. It also produced evidence of communications between members of this group to which Mr O’Carroll was not party. These communications would be hearsay, if produced to prove the truth of the communication’s contents, unless the evidence was admissible pursuant to the co-conspirators rule. On appeal, the Crown argues these communications were not produced to prove the truth of their content and they are therefore not hearsay. While that may be the case with some of the communications, others were relied on to show what members of the group were about to do or had done and in this respect we think they were hearsay.
The Crown concedes that the Judge made no ruling regarding the admissibility of this evidence. But then Mr Mansfield concedes that Mr O’Carroll’s very experienced trial counsel took no issue with the admissibility of the evidence. It is an issue of law, usually for the trial judge, whether otherwise hearsay evidence is admissible pursuant to the co-conspirator’s rule. On appeal, the issue for us is not whether proper process was followed at trial in relation to the admissibility of this evidence but rather whether third-party communications, which would otherwise be hearsay, were properly before the jury.
In R v Messenger this Court held that there are three threshold issues which have to be determined before co-conspirators’ statements can be used against another conspirator:[53]
(a) there was a conspiracy or joint enterprise of the type alleged;
(b) the defendant was a member of it; and
(c)the statements were made and/or the acts done in furtherance of that conspiracy or joint enterprise.
[53]R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [11].
Mr Mansfield challenges whether the threshold in (b) was met. As the Supreme Court said in R v Qiu, the issue is whether there is reasonable evidence that the defendant was a member of the conspiracy or joint enterprise.[54] Reasonable evidence describes evidence which of itself would not sustain a verdict of guilt but which establishes a foundation such that the judge considers it safe to admit the evidence of a co-conspirator.[55] That standard must be met without reference to the hearsay evidence the subject of consideration.[56]
[54]R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1 at [28].
[55]Richard Mahoney and others The Evidence Act 2006: Act and Analysis (3rd ed, Brookers, Wellington, 2014) at 74.
[56]R v Messenger, above n 53, at [13].
We have no doubt that the standard was well and truly met here and that there was reasonable evidence Mr O’Carroll was a member of the conspiracy or joint enterprise. In reaching this view we have taken into account only non-hearsay evidence: the evidence of Mr O’Carroll’s meetings with Ms Stevens and Mr Bowker, the recorded conversation with Ms Stevens at a restaurant (which we come to shortly), Mr O’Carroll’s presence on the last occasion on which methamphetamine was manufactured and, finally, the fact that Mr O’Carroll fled the scene with some of the product.
We also note that the Judge gave careful direction to the jury in the course of her summing-up in relation to this evidence. She warned the jury “to treat with caution and be very wary of reading anything adverse to Mr O’Carroll into what Ms Stevens and Mr Shaw and Mr Bowker are saying or doing between themselves to which Mr O’Carroll is not a party”. The Judge said the safest course was to give the most weight to evidence to which Mr O’Carroll is a direct party. We accept the Crown’s submission that this direction was very favourable to Mr O’Carroll.
We are therefore satisfied that the evidence of Mr O’Carroll’s alleged co‑offenders was properly before the jury and that we can have regard to it in considering this ground of appeal.

Analysis — Sufficient evidence

The evidence the Crown could point to was as follows. Mr O’Carroll lived at the site where the manufacturing, on the Crown’s case, took place. The Crown has good evidence to suggest that this property was the site where all three charged occasions of manufacturing took place. Mr O’Carroll’s response to this is that the manufacturing took place on a large rural property used by many people, including Mr Bowker, and it occurred well away from where he was living and out of sight of his house.
There may be some superficial attraction to that argument were it not for the fact that police interrupted an occasion of manufacturing at the property, on 5 May 2014, and found both Mr O’Carroll and Mr Bowker present. Mr O’Carroll’s evidence at trial was that he simply happened across Mr Bowker manufacturing methamphetamine. It was open to the jury to accept or reject that account and it is plain they rejected it. It was perhaps inevitable they would in light of the fact that, when the police interrupted the manufacture, Mr O’Carroll fled carrying with him some of the product which he discarded in a paddock.
In addition to this, the Crown could point to the fact that polling data showed the offenders in the region of Mr O’Carroll’s property on the day of the charged manufacture in March 2014. On that day the cellphones of Ms Stevens, Mr Bowker and Mr O’Carroll all polled at the same cell site. It is true that this evidence could do no more than indicate a general location but it was nevertheless part of the evidence the jury was entitled to take into account.
In the defence closing, defence counsel focused on Mr Bowker’s association with the address submitting that it was Mr Bowker, not Mr O’Carroll, who controlled it. The jury was urged to accept the account Mr O’Carroll had given in his evidence at trial — that he had woken up at about 6 am and walked down to the lower property shortly thereafter to check on his dogs. He saw Mr Bowker, confronted him, and it was at that point that the police arrived at the scene. Trial counsel emphasised, as Mr Mansfield did before us, the absence of any physical evidence linking Mr O’Carroll to the manufacturing site.
It was a critical part of Mr O’Carroll’s defence at trial that Mr Bowker had free access to the property — access that was equal if not greater than his own. It followed, it was argued for Mr O’Carroll, that the location of the manufacturing was explained by Mr Bowker’s connection to the land not Mr O’Carroll’s. But the Crown could point to an email exchange between Mr Bowker and Mr O’Carroll in which Mr Bowker asked Mr O’Carroll if he could come to the site the next day to deal with “that rubbish”, an exchange inconsistent with Mr O’Carroll’s case that Mr Bowker had the run of the site.
The Crown was also entitled to rely upon patterns of conduct that were established in respect of the three charges. As counsel submits, the fundamental basis of the Crown case against Mr O’Carroll was his connection to all three occasions of manufacturing which took place at a property on which he lived; the manufactures all involved the same people, although in varying combinations, but with him as the common denominator; and on the last occasion he was caught in the act of manufacturing with one of those people. The evidence in relation to each charge of manufacturing against Mr O’Carroll was admissible on the other charges.
Finally, the Crown was entitled to rely upon a conversation that took place between Ms Stevens (an undisputed manufacturer of methamphetamine with Mr Bowker) and Mr O’Carroll at a dinner at a restaurant. Mr Bowker was expected at that dinner but was late and so Mr O’Carroll called him to check on his whereabouts. When Mr Bowker did not answer his phone went to voicemail. Mr O’Carroll did not leave a message but nor did he hang up his phone so that Mr Bowker’s phone then recorded snippets of conversation between Ms Stevens and Mr O’Carroll. These snippets included statements by Mr O’Carroll such as “Either way … I feel sometimes it’s like too wet” and then a little further on “let it dry”. There was also reference to there being a “kilo still left” and then a statement “that’ll be fine when it is dry”. Evidence from the Institute of Environmental Science and Research at trial about the methamphetamine-manufacturing process was that it is common to use an electric fan to help complete an evaporation. If that process is not completed you can be left with very damp or wet methamphetamine hydrochloride. It was clearly open to the jury to infer that this was a discussion about the practicalities of achieving sufficiently dry product when manufacturing methamphetamine.
To conclude on this point, we are satisfied that there was sufficient evidence on which a jury could reasonably have been satisfied that Mr O’Carroll was guilty of the March manufacturing charge.

Second ground of conviction appeal: Propensity direction

Mr Mansfield submits that the judicial direction given in relation to how the jury could use evidence relating to one charge when considering other charges was inadequate; this was propensity evidence and required proper direction as to relevance, and proper and improper use. Such direction was especially needed, he says, in respect of the use of evidence of the May 2014 manufacturing when the jury came to consider the charged occasions of manufacturing in March and April 2014. Peters J did not, he submits, explain what propensity evidence is, explain the purpose of the propensity evidence in the case, identify the factors relied on by the prosecutor as establishing the relevant propensity, state the defence position on this, or direct that whether a propensity is found to exist is entirely a matter for them and that it should be put to one side if not found.
In suggesting this structure to the Judge’s direction on the issue of propensity, Mr Mansfield draws on the approach and directions identified by this Court in Stewart v R,[57] which he says received some endorsement in the later decision of the Supreme Court in Mahomed v R.[58]

The treatment of the propensity evidence at trial

[57]Stewart v R [2008] NZCA 429, [2010] 1 NZLR 197.

[58]Mahomed v R [2011] NZSC 52, [2011] 3 NZLR 145.

The Crown’s case in respect of the alleged manufacture of methamphetamine in March and April was highly circumstantial. It relied upon the evidence that Mr O’Carroll was interrupted manufacturing methamphetamine in May, which tended to prove the allegations founded on events in March and April.
Towards the end of the Crown’s address appears the following passage:
In relation to Mr O’Carroll, my submission to you is that the scene that confronted police on 5^thof May tells us an awful lot about what we need to know about what’s been going on. Not only that morning but in the preceding months. It demonstrates that meth is manufactured at Rataroa Road. It demonstrates, I suggest, that Mr O’Carroll lived at Rataroa Road and when the police come … he’s in that meth lab and he runs with a bag with about $140,000 of meth in it. And I suggest what that shows us is Mr O’Carroll running away from his meth lab with his meth because the Crown say he cooked meth there the 5^th of May, 9^th and 10^th of April and the 11^th and 12^th of March.
The defence response, as noted above, was to attack Mr O’Carroll’s links to the May manufacturing.
In summing up, the Judge suggested to the jury they might wish to consider the May manufacturing before they proceeded to consider the other charges. She outlined the Crown and defence cases in relation to that charge. She then continued:
[129] If having done that you are sure that Mr O’Carroll was participating in the manufacture of methamphetamine on 5 May, then you may take it into account in considering the evidence relating to charges 2 and 3 and the fundamental issue of whether the Crown has proved those charges beyond reasonable doubt.
[130] But even if you were sure on charge 4, in so far as concerns charges 2 and 3 it is only one piece of evidence to take into the mix. You have got to consider everything else that has been put in front of you and if you do not think that it assists you to consider those charges, then just put it out of your mind. As I have said, guilt on one charge does not mean guilt on the others.
The Crown says that this direction was incorrect but in a way which favoured the defence. This is because the use of propensity evidence does not depend on the Crown first proving the offending which makes up the propensity evidence occurred, either beyond reasonable doubt or to any particular standard. The Crown says the correct position is that, if the evidence for each charge fits a pattern, each may provide legitimate support for the other. There is no need to single out one charge.
We agree the approach taken by the Judge was cautious. The usual approach in respect of propensity evidence which is internal to the indictment (by which we mean where the evidence is cross-admissible between charges) is that the jury is instructed it is entitled to look at the whole of the evidence to see if the evidence on each charge provides legitimate support for the others. There is no need to single out one charge.[59] But as the Supreme Court said in Mahomed, there is no one template which fits what is required in every trial.[60] Each direction must be tailored to meet the needs of the case. On the particular facts of this case we think it was right for the Judge to take this cautious approach. As the Crown concedes, the charge relating to the May manufacturing was the key to the entire case against Mr O’Carroll because the evidence in relation to the other two charges was so circumstantial.
[59]See Te Rito v R [2013] NZCA 147 at [35].
[60]Mahomed v R, above n 58, at [94].

Mr Mansfield’s criticism of the Judge’s directions relies mainly upon their failure to comply with the template provided by way of guidance in Stewart. But the law has moved on since then. The minority and majority judgments in Mahomed were critical of aspects of that model direction.[61] As to what was required in this case, the minority of the Supreme Court did say that when giving a propensity direction a judge should identify the evidence in question, explain why it has been led and the legitimate respects in which it might be taken into account by the jury.[62] The judge should also put the competing contentions of the parties and caution the jury against reasoning processes which carry the risk of unfair prejudice.
[61]At [84]. At [7] the majority agreed with the minority.
[62]At [95].
Here the Judge identified the evidence as that related to the May manufacturing. She identified that the Crown case was that if Mr O’Carroll had been manufacturing in May, this was indicative of what was going on in March and April. She cautioned the jury they could not take the evidence as to the May charge into account on the other charges unless they were sure that Mr O’Carroll was guilty as charged in respect of the May manufacturing. She also cautioned against improper use of that evidence, which in this case would have meant placing too much emphasis on that charge even if proved. She cautioned the jury that even then it was only part of the evidence and that they had to consider everything else before them before reaching a verdict of guilt. She reiterated “guilt on one charge does not mean guilt on the others”.
This direction was well tailored to the requirements of the particular case. Mr O’Carroll’s defence on all charges turned upon the contention that he was not involved in manufacturing methamphetamine at all. If the jury had thought it possible that Mr O’Carroll’s explanation was true, that he chanced upon Mr Bowker manufacturing methamphetamine in May, then the Crown’s case on all charges could not succeed. But if the jury was satisfied he was guilty on the May charge, on the Judge’s direction it still had to go through the evidence on the other counts to satisfy itself of Mr O’Carroll’s involvement in the other two incidents. The risk was that the jury would leap from the conclusion of guilt for the May offending to a conclusion of guilt for all of the offending. The Judge cautioned against this. We see no deficiency in the direction. There was no risk of unfair prejudice to Mr O’Carroll not addressed by the direction.

Third ground of conviction appeal: New evidence

Mr O’Carroll seeks leave to produce new evidence on appeal in the form of affidavits from his co-offenders Ms Stevens and Mr Shaw.
In her affidavit Ms Stevens says that from the time of her arrest she felt very responsible for Mr O’Carroll’s situation. She explains that she knew he had not been involved with any of her criminal activities and that it was purely her offending, her friendship with him and the communications between them that had caused him to be arrested and charged. She decided she wanted to give evidence at trial for him. She made contact with his legal team who came to see her. She expected she would be called to give evidence but the lawyers did not return and no brief of evidence was taken from her. She said she learnt later that her lawyer had told Mr O’Carroll’s lawyers she did not wish to give evidence at Mr O’Carroll’s trial. Later her lawyer told her that giving evidence could be detrimental to her sentencing, which was scheduled for a date after Mr O’Carroll’s trial.
She discusses the period of time during which the March manufacturing occurred and says that communications between herself and Mr O’Carroll related to a racing suit; they had an interest in common, go‑karting. She said that the March manufacturing was completed by herself, Mr Shaw and Mr Bowker. Mr O’Carroll was not present at the address and was not aware of those activities.
In relation to the April manufacturing, she explains the meeting at the restaurant between herself, Mr O’Carroll and Mr Shaw was a birthday dinner for her. She gives innocent explanations for a number of text communications between them. She says that the April manufacturing was completed by Mr Shaw. Mr O’Carroll did not know of it and was not involved in it.
Finally, in relation to the manufacturing in May, although she was not present at it, she says “My understanding is that O’Carroll was not involved and had no knowledge that a manufacture was going to take place”.
Mr Shaw’s account is also that Mr O’Carroll was not involved with them in the manufacture of methamphetamine. It was after he heard Mr Bowker had sought to blame Mr O’Carroll during the course of his disputed-facts hearing that he decided to make contact with Mr O’Carroll’s lawyers and explain what had truly occurred. This was unfortunately too late to assist with the trial. He says Mr O’Carroll was unaware of what he, Mr Bowker and Ms Stevens were doing as they deliberately kept him in the dark.
He addresses an alleged manufacture which occurred in Rotorua in February 2014. Mr O’Carroll was initially charged in respect of this offending but was discharged during the course of the trial. Mr Shaw pleaded guilty to a charge that he had manufactured methamphetamine along with Mr Bowker on that occasion. Mr Shaw now says, notwithstanding his guilty plea, there was no manufacturing in Rotorua on that date. He claims to have pleaded guilty in order to achieve resolution of the charges against him; since there was no specific quantity alleged, he did not think it would make much of a difference to his sentence.
In relation to the manufacturing in March, Mr Shaw provides us with his understanding of the text messages passing between Ms Stevens and Mr O’Carroll and says that, since he was present at the manufacturing, he can confirm that Mr O’Carroll was not present and was not aware that methamphetamine was being manufactured.
In relation to the manufacturing of methamphetamine in April 2014, Mr Shaw claims to have been the only person present when that took place. Again he purports to explain text messages between Mr O’Carroll and Ms Stevens.
Finally, in relation to the May manufacturing, he reiterates in identical terms to Ms Stevens an understanding that Mr O’Carroll was not involved in that incident.

Analysis

The test for admissibility of evidence has most recently been authoritatively stated by the Privy Council in Lundy v R:[63]
[120] The Board considers that the proper basis on which admission of fresh evidence should be decided is by the application of a sequential series of tests. If the evidence is not credible, it should not be admitted. If it is credible, the question then arises whether it is fresh in the sense that it is evidence which could not have been obtained for the trial with reasonable diligence. If the evidence is both credible and fresh, it should generally be admitted unless the court is satisfied at that stage that, if admitted, it would have no effect on the safety of the conviction. If the evidence is credible but not fresh, the court should assess its strength and its potential impact on the safety of the conviction. If it considers that there is a risk of miscarriage of justice if the evidence is excluded, it should be admitted, notwithstanding that the evidence is not fresh.
[63]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.
In our view, this evidence falls at the first hurdle identified in Lundy because neither the evidence of Ms Stevens nor Mr Shaw is credible. Each witness has purported to explain events and communications to which they were not party. At times they have used identical language to do so. We infer that they are highly motivated to assist Mr O’Carroll and that this motive to assist has shaped the evidence which they have given. That in itself is a reason to have doubt about its credibility. But there are other reasons.
In relation to Ms Stevens, she gives detailed explanations about communications between herself and Mr O’Carroll but there is one particularly damaging communication which she does not attempt to explain. This is the conversation between Ms Stevens and Mr O’Carroll in the restaurant, recorded on Mr Bowker’s phone.
We also note that the witnesses express their “understanding” that Mr O’Carroll was not involved in the May manufacturing, despite neither being present. As the Crown submits, that “understanding” can only have come from Mr O’Carroll since it was Mr Bowker’s evidence that Mr O’Carroll was involved.
In relation to Mr Shaw, he now claims that no manufacturing of methamphetamine took place in February 2014 although both he and Mr Bowker pleaded guilty to that offending. Moreover, he says he was the only person physically present at the April manufacturing. However, he pleaded guilty and was sentenced on the basis that he was not the person that actually undertook the manufacturing.
For these reasons we do not find the evidence of either Ms Stevens or Mr Shaw credible.
We also have reservations as to whether the evidence can be properly regarded as fresh. On the witnesses’ own account, this evidence was reasonably available at the time of trial. Ms Stevens says that her counsel, without her instructions, intermeddled in the arrangements that she would give evidence. We have doubts about this explanation. No waiver has been provided so that explanation cannot be further interrogated. And even if Ms Stevens’ counsel did take that step, it is plain that she became aware of it and did not take steps to ensure that she was able to give evidence. We do not need to decide whether the evidence is fresh, however, as we are satisfied whatever the answer to that issue, this evidence is not cogent. If either of these witnesses had given evidence, given the inherent contradictions between the accounts they gave in their affidavits and the evidence that was available to use in cross‑examination against them, we are in no doubt that would have undermined the defence case.

Result on Mr O’Carroll’s conviction appeal

None of the grounds on which Mr O’Carroll’s conviction appeal is advanced can succeed. His appeal is dismissed. As noted, Mr O’Carroll has abandoned his sentence appeal.

Ms Stevens’ sentence appeal

Extension of time to appeal

Ms Stevens’ notice of appeal was filed out of time and she therefore requires an extension of time to appeal. The Crown accepts that no prejudice will arise if an extension is granted and we consider Ms Stevens’ appeal raises some important issues. In these circumstances, we grant an extension of time to appeal.

Background facts

On 19 August 2015 Ms Stevens pleaded guilty to 15 charges arising out of the police investigation in Operation Genoa. These charges encompassed the manufacture, possession for supply and supply of the class A controlled drug methamphetamine; the possession of the class B controlled drug ephedrine for supply; the possession of equipment and materials with intent; the unlawful possession of firearms; and the obtaining of documents. The offending involved three occasions of manufacturing.
When sentencing her, Brewer J characterised Ms Stevens as a leading member of a group involved in the large-scale manufacture and supply of methamphetamine.[64] He noted that she had gained significantly from her activities and the quantity of methamphetamine manufactured was certainly greater than two kilograms.[65] Placing her offending well within band 4 of Fatu, he adopted a starting point of 16 years’ imprisonment.[66] He uplifted that by a further 18 months to reflect the additional charges to which she had pleaded guilty, taking him to a starting point of 17 years and six months’ imprisonment.[67] The Judge noted that Ms Stevens had previously offended in very similar circumstances and uplifted the sentence a further six months in light of that.[68]
[64]R v Stevens [2015] NZHC 2336 at [3].
[65]At [3].
[66]At [5]–[6].
[67]At [7].
[68]At [11].
He then addressed matters raised in mitigation by Ms Stevens: her guilty plea, her prospects of rehabilitation and her remorse. The Judge concluded that Ms Stevens was entitled to a guilty plea discount of 12.5 per cent — one half of the discount she would have received had she entered guilty pleas at the earliest reasonable opportunity. Applying that discount, the Judge arrived at a final sentence of 15 years and nine months’ imprisonment.[69] The Judge did not accept that Ms Stevens had any more remorse than anyone would feel on being caught.[70]
[69]At [18].
[70]At [16].
On appeal, Ms Stevens argues that the sentence is manifestly excessive because she should have received a full 25-per-cent discount for her guilty plea. This proposition was argued on two bases. First, Ms Stevens says that shortly before she pleaded guilty, the seriousness of the offending alleged against her by the Crown reduced considerably reducing the overall criminality involved in the conduct to which she pleaded guilty. Citing the authority of Hohipa v R,[71] she says she should be entitled to a full guilty plea discount where her guilty plea was delayed only to enable the negotiation of fewer charges and a different summary of facts.
[71]Hohipa v R [2015] NZCA 485.
The alternative ground upon which she advances her appeal is that her counsel in the High Court proceedings, Mr Andrew Speed, did not act upon her instructions. She says that, had he acted upon those instructions, her guilty plea would have been entered at an earlier stage of proceedings and the sentencing judge would have then allowed a full discount for entry of the guilty plea.

First ground of appeal: Guilty plea at first reasonable opportunity?

There can be no doubt that Ms Stevens did not plead guilty at the first opportunity reasonably available to her. Her pleas of guilty were not entered until the week before her trial was due to commence. It was entered after the Crown had been successful in obtaining a DNA suspect compulsion order in respect of Ms Stevens, enabling it to tie her to one of the charged occasions of offending. The Crown was also successful in applying for the admissibility of propensity evidence, which further strengthened its case against her. Her guilty plea was entered more than a year after her first appearance in May 2014.
We accept that the charges ultimately withdrawn did add some criminality to the allegations against Ms Stevens. But Ms Stevens could have pleaded guilty to the charges in respect of which she ultimately accepted guilt and continued to challenge her guilt under those other charges. In this respect, this case is distinguishable from that of Hohipa. Mr Hohipa faced a single charge of conspiring with another to supply methamphetamine. The most serious allegation in the summary of facts accompanying that charge was that Mr Hohipa had been involved in a conspiracy to supply one kilogram of methamphetamine. Ultimately, the Crown agreed to amend the summary of facts to remove that allegation and the allegation that he was in control of methamphetamine and cash. Accordingly, the criminality involved in the charge to which Mr Hohipa entered his guilty plea was substantially reduced by the late amendment to the summary of facts; it was reduced to the extent that it altered the band of offending in which it fell, in terms of the bands described in the tariff case Fatu.
For these reasons, we are satisfied that this first ground on which Ms Stevens advances her appeal cannot succeed.

Second ground of appeal: Plea at first reasonable opportunity in light of counsel’s failure to follow instructions

Essentially, Ms Stevens’ argument is that she did all she could to try to resolve the charges at the earliest possible date. However, her counsel let her down by failing to engage with the Crown to negotiate charges and by pursuing pre-trial applications without her instructions.

The evidence

We received affidavits from both Ms Stevens and Mr Speed in relation to this ground of appeal. Ms Stevens’ account is that she was in custody from the date of her arrest. She did not seek bail and was prepared to accept the consequences of her offending. Although she does not criticise Mr Speed’s general representation of her, she takes issue with his failure to follow her instructions to enter guilty pleas at the earliest available opportunity and thereby obtain a full discount at sentence. While she initially accepted Mr Speed’s advice to delay entering guilty pleas until disclosure was available, from September 2014 she was pressing him to discuss resolution with the Crown.
She then became aware that her ex-partner, Mr Shaw, had pleaded guilty to various offences in December 2014 and received a full 25-per-cent discount. By that time she was very anxious as she had been in custody for some seven months. But notwithstanding her instructions, pleas were not entered until August 2015.
In his affidavit in reply, Mr Speed takes the point that it is not for him to enter guilty pleas on behalf of clients. He had no instructions to enter guilty pleas to all the charges because Ms Stevens did not accept she was guilty of all the charges. Although he acknowledges that he received a number of letters from Ms Stevens in which she expressed the desire to resolve the charges, he says she did not wish to enter guilty pleas to the more serious charges of manufacturing methamphetamine. Pleading guilty to the lesser charges would have been meaningless. He says at no time did he ever receive written instructions from her or indeed any instructions to plead guilty to the manufacturing charges.
Mr Speed explains the delay in obtaining full disclosure from the police initially delayed negotiations to resolve charges. He did not receive full disclosure until February 2015. He was also concerned about ongoing applications by the Crown for a DNA sample from Ms Stevens by way of a suspect compulsion order. This was to connect her to a cigarette butt found at the scene where it was alleged methamphetamine had been manufactured. It was only at the third or fourth hearing of that application, in July 2015, that the Court ordered the provision of that sample.
Mr Speed says it is as a result of his successful opposition to the application to admit propensity evidence, and other negotiations with the Crown, that the Crown agreed to withdraw two significant manufacturing charges.

Discussion

It was an unusual feature of the affidavit evidence and the evidence that Ms Stevens and Mr Speed gave before us that counsel for Ms Stevens, Ms Cooper, was able to refer to extensive correspondence all flowing one way, from Ms Stevens to Mr Speed. In contrast, Mr Speed had scant records. He had no record of any advice he gave to Ms Stevens, whether in the form of a file note or correspondence.
Ms Stevens’ letters corroborate her account that, from a very early point, she repeatedly told Mr Speed she wished the charges resolved so that she could receive a full credit for a guilty plea. As early as 1 June 2014, shortly after her arrest, Ms Stevens wrote to Mr Speed asking him to calculate the pros and cons for her and weigh up some options in relation to “going guilty” at the earliest time. She said although she did not want to negatively affect other co-accused by entering a guilty plea on charges which might “throw them under the bus”, she herself was nevertheless eager to go guilty on a number of charges. She said in her letter:
… I really just want to take advantage of any reductions I can get by removing myself from the firing line, reducing quantities, submitting an early guilty plea, submitting remorse letters and current drug courses I’m doing on remand etc. I need all the strategy I can get in this current situation to avoid being in a zimmerframe upon my release.

On 23 June 2014 Ms Stevens wrote to Mr Speed and said:
I appreciate your professional opinion regarding the issue of a plea, an appropriate plea, and yes ok I am happy to wait until September.
This accords with Ms Stevens’ evidence that she was content to put off the issue of guilty pleas whilst disclosure was received and considered.
On 28 October 2014 Ms Stevens wrote to Mr Speed in respect of the disclosure. She said:
I have seen the finger print evidence, the ESR report states 79% purity, the unlawful searches were on storage units, I disagree with the DNA evidence which is spoken about in disclosure. Besides that, there is obviously evidence of me being in possession of illegal items however no evidence of anything else which I’ve been accused of.
Having said all that I’m really worried about losing a percentage of my early guilty plea reduction by taking any longer now that full disclosure is in.
Later in the same letter she continues:
I am of the opinion that there is no avoiding a term of imprisonment as a result of Operation Genoa and obviously I would like the best possible outcome. I feel that the way to achieve this is by taking advantage of the percentage off for early guilty plea and by negotiating with the prosecution to either remove some charges or not lay a minimum parole period upon sentencing.
On 17 November 2014 Ms Stevens sent a letter to Mr Speed enclosing a copy of a letter to the Judge to be used at sentencing, expressing her remorse. The letter continued:
How are your communications with the Crown going? Will I be able to get on with my sentence in December?

By that point in time, Ms Stevens expected negotiations to be underway and resolution of the charges to be imminent. If that was unrealistic, say because of her unwillingness to plead guilty to manufacturing methamphetamine, it could be expected that competent defence counsel would advise her what she needed to do to resolve the charges. But there is no evidence that Mr Speed did so. We see this as inconsistent with Mr Speed’s account.
On 10 December 2014 Ms Stevens wrote to Mr Speed expressing irritation that Mr Speed had been in the High Court that morning arguing an interception warrant. Mr Speed says she was wrong in this, he was not involved in that hearing. But what is relevant is Ms Stevens’ communication on resolution of the charges. She said:
Along with the fact that I’m extremely irritated after being on remand for 8 months now, I’m also concerned that we are wasting time and that I’ll lose discount for early guilty pleas.
Are we still on the same page or not? I have to wonder because my instructions are being completely ignored and I am clueless in regards to your intentions or strategy. On two occasions now I have asked you in person to please find the time to read over disclosure and begin negotiations with the Crown. It’s obvious this is not happening and I’m left wondering why I’m so far down your priority list.
Ms Stevens’ evidence before us was that she did not want to record in writing the charges she was prepared to plead guilty to, as she was wary of that correspondence being used by the police. She had in mind the extent to which the group had been followed and their communications intercepted during the course of Operation Genoa.
However, on 14 January 2015 Ms Stevens wrote to Mr Speed enclosing a list of 15 charges out of 26 that she was “willing to go guilty on immediately”. She said “I know you don’t understand my urgency to have this dealt with as soon as possible and that’s ok, but it’s what I want. So please, could you begin negotiations with the Crown now, please?” The charges on which she indicated she was “willing to go guilty on” included a charge of manufacturing methamphetamine.
On 12 June 2015 Ms Stevens raised the possibility of a sentencing indication and concluded:
Surely some sort of negotiations can be done to get me the maximum amount of discount and also to leave the parole period up to the Parole Board.
Mr Speed’s evidence before us was that he did not have instructions to negotiate in relation to the manufacturing charges. We consider his account is inconsistent with the written record we have set out above, which suggests preparedness on the part of Ms Stevens to negotiate on all matters and a desire for advice about how to do that. It is also inconsistent with the letter Mr Speed wrote to the Crown on 29 October 2014. In that letter he said he had instructions to “explore resolution of all charges against Ms Stevens”.
Asked why negotiations did not then ensue, Mr Speed said that the Crown did not respond to his October letter so he took no steps to follow it up. He also referred to a letter he received in November 2014, which contained a list of charges against Ms Stevens and proposed pleas indicating not guilty pleas to all serious charges. Mr Speed said he regarded this letter as Ms Stevens’ instructions in relation to guilty pleas. The letter is not in Ms Stevens’ handwriting. Ms Stevens’ evidence was that the letter was written by her co-defendant, Mr Cavanagh, and was an instruction to her as to how she was to plead. She said that when she handed it to Mr Speed she made clear that those were not her instructions. She also said that she told Mr Speed that Mr Cavanagh was pressuring her in relation to her pleas.
Mr Speed, in contrast, could not recall the circumstances in which he was given the November letter, whether it was in Court or possibly at a meeting. He said, however, he understood it to be Ms Stevens’ instructions — he certainly was not told it was from Mr Cavanagh and in any case it was consistent with the oral instructions he was receiving at the time.
Mr Speed’s account that this letter was consistent with the instructions he was receiving is undermined by the letters from Ms Stevens. These make clear her preparedness to negotiate on all charges. It is also undermined by his own letter sent in late October. Ms Stevens had a clear recollection of the circumstances in which she handed the letter to Mr Speed and that she told him the instructions were not hers. Moreover, although the letter was handwritten, it was not in Ms Stevens’ handwriting. Given how many handwritten letters Mr Speed had received from Ms Stevens in her own handwriting, he should have been on inquiry as to the status of the letter. We therefore consider Ms Stevens’ evidence is more reliable as to the circumstances in which Mr Speed came to receive the November letter of instructions.
Mr Speed was asked of his reaction to Ms Stevens’ letter to him dated 15 January 2015 in which she gave charge-specific instructions in relation to guilty pleas. He confirmed he did not take it very seriously when he received it. He said he “would have” discussed it with Ms Stevens and told her that there was potential that the manufacturing charge she was proposing to plead guilty to would not be pursued as it was the charge the DNA suspect compulsion order related to. Mr Speed accepted that he did not mention the instructions he received from Ms Stevens to the Crown but believes that would have been because she was happy with his advice not to plead guilty to that charge. We have difficulty accepting Mr Speed’s explanation. This was an instruction to offer guilty pleas to a number of serious charges, including a charge of manufacturing methamphetamine. It was given in the context of persistent requests by Ms Stevens that Mr Speed help her resolve the charges. Mr Speed should have discussed the issue with the Crown. Doing so would not prejudice Ms Stevens’ ability to resist the application for a DNA compulsion order.
Having reviewed the evidence, we are satisfied that Mr Speed had instructions from Ms Stevens, as early as September 2014, to pursue discussions with the Crown to achieve resolution of all charges. Mr Speed failed to do so. The correspondence — Ms Stevens’ many letters to Mr Speed and Mr Speed’s one letter to the Crown — establish that Ms Stevens’ instructions to Mr Speed were to begin negotiation on all charges with a view to resolution. We prefer Ms Stevens’ evidence to this effect; it has the advantage of being corroborated by the written record.
We are also are satisfied that, by January 2015 at the latest, Mr Speed had specific instructions to offer a plea or pleas to manufacturing charges.
Mr Speed failed to follow either instruction. On his own evidence, he failed to have any serious discussion with the Crown regarding resolution of the charges until July 2015.
There was a conflict in the evidence as to whether Mr Speed pursued the pre‑trial issues he took on Ms Stevens’ instructions. We do not need to resolve this conflict. Ms Stevens was consistent in her written instructions to Mr Speed that she did not want anything to jeopardise her guilty plea discount. Mr Speed conceded that he did not give Ms Stevens advice regarding the impact of pursuing those pre-trials on her prospects of a full discount for an early guilty plea. Given the very clear indication from Ms Stevens that she wished to obtain full credit for an early guilty plea, Mr Speed should have provided such advice.
One final point arose during the course of the hearing which caused us concern. On two occasions Ms Stevens provided a letter to Mr Speed expressing remorse to the Judge for her offending. Mr Speed did not provide either letter to the Judge. He accepted that was entirely his fault and that he had misplaced the second more up-to-date letter. He also accepted that he did not raise Ms Stevens’ remorse with the Judge and that the Judge’s reference to her remorse was a reference only to the material contained in the pre-sentence report. We consider that Mr Speed’s representation of Ms Stevens at sentencing in this regard was unsatisfactory.
Ultimately, the question is whether the sentence was manifestly excessive. The Judge did not fall into error in regard to the appropriate discount for an early guilty plea. But we are aware of information which was not before the Judge. We are aware that from a very early stage, and quite persistently, Ms Stevens instructed her counsel to pursue resolution of the charges so that she could have the full credit for the guilty plea. She was consistent in her instruction to him that any steps Mr Speed took on her behalf should not jeopardise that. Although none of this material was before the Judge, we are satisfied that such was the situation.
We are also satisfied that Mr Speed failed to follow her instructions. While we cannot be sure what the outcome would have been if he had pursued negotiations with the Crown, in the particular circumstances of this case, we consider that Ms Stevens should receive the full credit for an early guilty plea. Accordingly, she is entitled to a 25-per-cent discount on her sentence. The minimum period of imprisonment, which the Judge set at 50 per cent of her sentence, should be reduced accordingly. Reducing the sentence by 25 per cent arrives at a sentence of approximately 13 years and six months. Fifty per cent of that leaves a minimum period of imprisonment of six years and nine months.

Result on Ms Stevens’ sentence appeal

The appeal against sentence is allowed. The sentence of 15 years and nine months’ imprisonment with a minimum period of imprisonment of seven years and 10 months is quashed. Ms Stevens is re-sentenced to a period of imprisonment of 13 years and six months, with a minimum period of imprisonment of six years and nine months.

Summary of results

Mr O’Carroll’s appeal against conviction is dismissed.
Mr Cavanagh’s appeal against sentence is allowed in part. The minimum period of imprisonment imposed by Keane J is quashed.
Mr Bowker’s appeal against sentence is dismissed.
Ms Stevens’ is granted an extension of time to appeal. Her appeal against sentence is allowed. The sentence of 15 years and nine months’ imprisonment with a minimum period of imprisonment of seven years and 10 months is quashed. Ms Stevens is re-sentenced to a period of imprisonment of 13 years and six months with a minimum period of imprisonment of six years and nine months.

Solicitors:
McVeagh Fleming, Auckland for Mr Cavanagh
Crown Law Office, Wellington for Respondent

[2016] NZCA 510

20 October 2016