R v Amanda Jane Pearson

[2003] NZCA 122

IN THE COURT OF APPEAL OF NEW ZEALAND

CA2/03
CA3/03

THE QUEEN

v

AMANDA JANE PEARSON
MARK JAMES CRAIG MITCHELL

Coram:Blanchard J
Tipping J
Glazebrook J

Appearances:  R J Stevens for Appellant Pearson

M L Greenhough for Appellant Mitchell
M F Laracy for Crown

Judgment (On the papers):     24 June 2003 

JUDGMENT OF THE COURT DELIVERED BY GLAZEBROOK J

INTRODUCTION

[1]       Mr Mitchell and Ms Pearson were found guilty after a trial by jury on a charge of possession of cannabis for sale.  In the course of the trial both were discharged on a charge of cultivation of cannabis and the jury found Ms Pearson not guilty on a charge of selling cannabis.  They were sentenced on 3 December 2002 to nine months imprisonment (with the commencement deferred for two months to enable them to apply for home detention).  They appeal against their conviction and sentence.

[2]       The appeal is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.  The relevant materials, including written submissions, which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001 have been considered by members of the Court who have conferred and agreed upon this judgment.

Appellants’ submissions on conviction

[3]       The appellants appeal against their conviction on two grounds:

(a)that the evidence of a witness, Detective Sergeant Bruce Jenkins, should not have been admitted as he had not qualified himself as an expert;

(b)that the Crown had not proven an unbroken chain of evidence in relation to the drug material seized at Ms Pearson’s house and thus were not entitled to rely on the ESR Certificate of Analysis.

[4]       A voir dire was held to ascertain if Detective Sergeant Jenkins could give evidence as an expert.  The judge accepted him as an expert but did not give reasons for that decision. 

[5]       The appellants submit that the detective should not have been permitted to give evidence.  They submit first that he had not acquired a sufficient degree of expertise through any course of special study.  In this regard they point out that he had not undertaken any studies in relation to the use, distribution or cultivation of cannabis.  He had only resorted to textbooks as a “reference type of source”.  He had not attended any seminars or conferences on drug enforcement.  The only “programme” he had attended was the “undercover training programme” which involved training in relation to the use and avoidance of cannabis.  The only other courses he had attended were for his “detective training” which involved the standard courses every Police Officer completes in order to become a Detective.

[6]       They further submit that he does not qualify as an expert by virtue of experience.  They say that he joined the Police in 1988, and between 1996 and 2000, while still a detective, was the “drugs officer” for the Kapiti-Mana District.  In this role he advised staff, delivered training and assisted with “education type programmes”.  It was submitted that none of these duties would have added to his knowledge in relation to the use, distribution or cultivation of cannabis.  They point out that the detective had accepted in cross-examination that, “you don’t learn anything from the DARE programme”.  Apart from this he had supervised an undercover police officer, had been involved in “several” cannabis recovery operations and had seen “probably about 10” hydroponic cultivation operations and “probably 20 indoor growing or 30 indoor growing operations”.  His knowledge in relation to “distribution networks” had been acquired through speaking to “people that are purchasing drugs” and “dealers, suppliers and growers” who had been arrested or were victims of the “odd home invasion where the victim’s a drug dealer or whatever”.  In re-examination the detective sergeant said that he had been involved in executing “literally a couple of hundred” search warrants.  However the appellants submit that there was no evidence that these warrants related to drugs nor what the witness’ role was apart from assisting and supervising other staff.

[7]       Moving now to the chain of custody point, the appellants submit there is no evidence about what happened to the drug material at issue between 30 January 2002 and 23 May 2002.  Constable Haist gave evidence that he had on 30 January 2002 secured, labelled, sealed and placed the exhibits in the drug exhibit safe at the Porirua Police Station.  Detective Holt gave evidence that she had on 13 May 2002 delivered the exhibits to ESR for analysis.

[8]       The appellants submit that, even accepting that the drug material was placed in the drug safe by Constable Haist on 30 January 2002, there is no evidence as to who had access to the drug safe and whether the drug material was still in the drug safe prior to being delivered to the ESR on 13 May 2002.  This gap in the chain is, they submit, normally covered by an officer deposing as to the people who have access to the material placed in a drug safe and confirming that the material that was deposited in the drug safe was uplifted on a given day and delivered to the ESR.  In the present case the Court had no evidence about what happened to the material once it was placed in the drugs safe, who had access to it and where Detective Holt obtained it from prior to delivering it to the ESR.  In these circumstances the Court could not be satisfied about the integrity of the exhibits, nor even that the material that was seized was the same material that was subsequently analysed.  Thus, the Court could not rely on the ESR Certificate of Analysis to prove either that the material was cannabis or that it weighed more than the 28 grams required to activate the presumption of possession for the purpose of sale in s6(6) of the Misuse of Drugs Act 1975.

Crown submissions on conviction

[9]       Ms Laracy for the Crown submits that the judge was right to admit the detective sergeant’s evidence as expert evidence on the basis that, in addition to the standard courses and training necessary to become a detective, he had 4 years as the drugs officer of the Kapiti-Mana District, a year spent with the Organised Crime Unit in Wellington and personal involvement in the execution of hundreds of search warrants.  He had been a member of the CIB since approximately 1992 and throughout his Police career (commencing 1988) he had been in contact on numerous occasions with people involved with cannabis.  Among other sources of contact, he cited obtaining information from criminal informants, witnesses, drug dealers, gang members and distribution networks (dealers, suppliers and growers).  He also had training in and involvement with the undercover police training programme.

[10]     In terms of the chain of custody the Crown submits that there is no basis for challenging on appeal the integrity or origin of the items analysed by ESR.  The evidence of Detective Holt, as officer in charge, was that she was present and assisted in the search and seizure of the cannabis at Ms Pearson’s house.  She confirmed Constable Haist’s evidence as to how and where the drugs were secured.  A special responsibility of Detective Holt’s was to ensure that the items seized from the house, and believed to be drugs, were delivered to the ESR for analysis.  Her evidence was that this occurred.

[11]     In addition the Crown points out that neither counsel for the appellants challenged either Detective Holt or Constable Haist in cross-examination on their evidence that the items seized from the house were sealed and placed in the drug exhibit safe.  Neither counsel suggested to Detective Holt that the exhibits she removed from the safe were not the same as the ones that had been seized, or that the seals had been tampered with, or that the integrity of the items had in any other way been compromised.

[12]     Further, the Crown submits that the ESR certificate is consistent with the items analysed being the same as the ones seized.  Constable Haist confirmed that the number of the item on the drug exhibit form corresponds to the number on the certificate from ESR.  The description, number of items, and, with some small discrepancies, the weight, indicate that the drug exhibits itemised in the drug exhibit form prepared by Constable Haist, were the items analysed by ESR and described in the certificate.

[13]     In the Crown’s submission the evidence before the Court clearly established the chain of custody of the drug exhibits from seizure to analysis and the concern expressed by the appellants that the jury could not be assured of the integrity of the exhibits is merely speculation without any evidential foundation.  The Crown submits that the only inference available on the evidence is that from 30 January 2002 to 13 May 2002 the drugs remained sealed and in the drug exhibit safe at Porirua Police Station.

Discussion on conviction appeal

[14]     We deal first with the question of whether the judge was correct to accept that Detective Sergeant Jenkins was qualified to give evidence as an expert witness.  We consider that there was ample material to enable the judge to come to the view she did, particularly given the detective sergeant’s involvement in the undercover police training programme.  This ground of appeal fails.

[15]     In terms of the chain of custody we accept the Crown submission that the appellants are merely speculating, without any evidential foundation, that there may have been some break in the chain.  Evidence was given as to the securing of the exhibits in the drug safe and (by implication at least) of their removal from the drug safe to take to the ESR.  While it may have been better to have had evidence as to what had happened in the period between them being placed in the safe and them being taken to the ESR, there is nothing to suggest that the exhibits were anywhere other than in the safe during that period and in particular nothing to suggest that the drugs were not in the safe when Detective Holt uplifted them to take to the ESR.  We note the lack of cross-examination on this issue referred to by the Crown.  This ground also fails.

Appellants’ submissions on sentence

[16]     The appellants submit that their sentencing was conducted on an improper basis.  First the judge was wrong in their submission to find that there was a commercial element in the offending merely because they had failed to rebut the presumption of possession for sale. 

[17]     It is accepted by the appellants that the jury must have rejected the proposition that all the cannabis found at the address was for the appellants’ personal use.  However, it is submitted that the verdict of guilty in relation to the charge of possession of cannabis for sale did not necessarily mean that the jury rejected, for example, Ms Pearson’s explanation for the use of the tinfoil also found at the address as being required to make pastries for her son or the other explanations given.  In addition, the guilty verdict alone did not establish that there was a “commercial element” to the appellants’ possession of the cannabis.  The judge should have determined, on the facts as she found them, whether there was a commercial element to the offending.

[18]     In the appellants’ submission there was no evidence of any commercial element to the possession of the cannabis.  There was no evidence of any sales of cannabis, apart from Ms Pearson’s original statement to the police which was clearly rejected as untrue by the jury.  She had said in her statement that she had sold some cannabis for Mr Mitchell in late 2001 but said in her evidence that she had said this to get Mr Mitchell into trouble as she was annoyed at him.  There were no “tick-books” found, nor was there any other documentary evidence to suggest that the appellants were involved in selling cannabis.  There were no scales found.  Ms Pearson explained the presence of the bundle of small plastic bags which even the “expert” agreed were not the type of bags typically used to package cannabis.  There were snap-lock lunch bags of the type used to package cannabis at the address but none of the cannabis was packaged in these bags or the tinfoil that was found at the address.  In addition the Crown’s expert deposed that the strips of tinfoil found at the address were longer than the strips of tinfoil normally used to wrap cannabis “bullets”.  Ms Pearson explained the $650 in cash that was located at the address as being the proceeds of the sale of her motorbike.  In the appellants’ submission this explanation was corroborated by the later enquiries undertaken by Detective Holt.  There was no other evidence of the sale of cannabis at the address.  The judge decided that the cannabis found in the laundry was “clearly rubbish and was not for commercial use”.  The judge also appears to have decided that the various small amounts of cannabis found in various locations around the house and in Ms Pearson’s car was for personal use.  Thus, the judge concluded that “at most, the cannabis for sale weighed 30.5 grams”.

[19]     In these circumstances the appellants submit that the judge should have concluded that the Crown had not proved that there was a “commercial element” to the offending.  Despite the presumption in s6(6) of the Misuse of Drugs Act 1975 it is submitted that the onus must be on the Crown to prove that there was a “commercial element” for sentencing purposes.  The Sentencing Act 2002 provides in s24(2) that “the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact”.  Applying the above principles to the present case it is submitted that a sentence of imprisonment should not have been imposed or alternatively that the 9 months imprisonment imposed was manifestly excessive.

[20]     In addition, the appellants submit that the judge was wrong to use the tariff in the case of R v Terewi [1999] 3 NZLR 62 as that dealt with cultivation and not supply, and in any event now needs to be read subject to the principles of the Sentencing Act 2002 and in particular s16. It is submitted that each case must be considered on its own merits and a Court is no longer entitled to impose a sentence of imprisonment simply because a case appears to come within the guidelines in Terewi.  We were invited to revisit the Terewi guidelines in the light of the Sentencing Act.

Crown submissions on sentence

[21]     The Crown submits that it is clear that the judge had regard both to the jury’s verdict as well as the rest of the evidence in the trial in finding that the appellants’ offending was, to some degree, a commercial enterprise.  It submits that the final sentence is within the available range.

[22]     The Crown points to the fact that the total quantity of cannabis found at the address was 71.9 grams.  There were also items consistent with drug dealing including a number of snap-lock bags and tinfoil (including pre-cut pieces).  Cash amounts of $650 and $200 were found.  Ms Pearson’s explanation for the quantity of snap-lock bags was that she intended to make jewellery.  Her explanation for the pre-cut tinfoil was that it was for making pastries.  She could not explain why Mr Mitchell’s fingerprint was found on some of the tinfoil, as he did not make pastries.  Her explanation for the $650 was that it was from the sale of her motorbike one and a half months ago.

[23]     It is submitted that the judge noted the jury’s verdict, but clearly had regard to the evidence itself when determining the size of the commercial aspect for the purpose of sentencing.  The judge considered the quality of the cannabis and determined that the proportion of cannabis intended for sale was only approximately 30.5 grams.

[24]     In the Crown’s submission the quantity of cannabis available for sale is not the only relevant factor when determining whether there is a commercial element in a possession for supply case.  A small amount of cannabis, or evidence of a single sale, may be suggestive of a limited operation, but will often not be determinative of that inquiry. The presence of the other items identified by the judge in her sentencing remarks indicate that the appellants were involved in an on-going dealing operation.  Accordingly the Crown submit that the judge was entitled in the circumstances to find that commercial aspect was real – albeit at the lower level – and that it warranted a starting point of two years’ imprisonment.

[25]     The Crown accepts that the categories identified in Terewi must be applied with care to cases of possession for supply but submits that they are still relevant as a guideline and refers in this regard to the cases of R v Walker CA356/01, 25 July 2002, R v Keefe CA275/02, 28 November 2002 and R v Garland CA350/02, 15 April 2003.  It further submits that the sentence is not inconsistent with the Sentencing Act 2002 as deterrence is of paramount importance with regard to cannabis offending which is commercially motivated.

[26]     Overall the Crown submits that a starting point of two years imprisonment was justified and that the generous discount given did reflect real credit for the appellants’ personal circumstances and previous good records.

Discussion on sentence appeals

[27]     The judge, in dealing with the question of whether there was a commercial element involved, said in her sentencing remarks that the jury must have rejected Ms Pearson’s explanations for the tinfoil and the bags and thus in her view must have found there was some commercial element involved.  While a guilty verdict on a possession for supply charge would not necessarily mean that the jury had rejected the whole of an accused’s explanation, the judge, having heard all the evidence, considered that it must have done so in this case.  She then went on to ascertain that part of the cannabis that was for commercial use, being at most 30.5 grams.

[28]     The judge also recognised that the categories in Terewi were no more than guidelines in cases of supply as against cultivation.  While she took as a starting point the bottom of the second category in Terewi of two years she halved it to reflect the small amount of cannabis involved.  She then further reduced the sentence by three months to reflect the personal circumstances and lack of previous convictions of both appellants.

[29]     We can discern no error of principle in her approach, either in the manner she applied Terewi or in terms of the Sentencing Act 2002.  She clearly considered the individual circumstance of each appellant and those of the offence at issue.  The result can by no means be seen as manifestly excessive.

Result

[30]     For the above reasons both Ms Pearson’s and Mr Mitchell’s appeals against conviction and sentence are dismissed.

Solicitors:
Fanselows, Wellington for Appellant Pearson

Crown Law Office, Wellington for Respondent