R v Antonievic (No 2)
[2015] NZHC 439
•11 March 2015
ORDER PROHIBITING PUBLICATION OF THE REASONS FOR JUDGMENT IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL.
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2011-042-000869
CRI-2011-042-000876 [2015] NZHC 439
THE QUEEN
v
TAYLOR IVAN ANTONIEVIC THOMAS JOSEPH BASHFORD NATALIE JEAN BUSCH
COLIN CHINNOCK JORDAN JOHN DALY
JASON PETER GEORGE FRIEND JASON PAUL GRIFFITHS GRANT ROY HAYWARD TERRY JONES
HAYLEY JOANNE KIRKWOOD MARK JAMES LEE
RUSSELL PHILLIP LLOYD JOSEPH MARK PAHL GREGORY JOHN PAGE ROGER PAUL PATRICK
GLYN PATRICK RUTLEDGE CRAIG PETER SMITH DAMIAN JOHN STACEY ROBERT JOHN STEWART GLEN ROSS THOMPSON
R v ANTONIEVIC (No 2) [2015] NZHC 439 [11 March 2015]
Hearing: 6 March 2015 Counsel:
M A O'Donoghue for Crown
P H B Hall QC and S W Rollo (via Telephone) for Defendants
Bashford, Stacey and Lee
J R Rapley and S W Rollo for Defendant Patrick (via
Telephone)S W Rollo for Defendants Pahl and Friend (via Telephone) A J D Bamford for Defendant Jones, Lloyd and Page
C P Stevenson and T H A Spear for Defendant Hayward
J C S Sandston for Defendant RutledgeP H B Hall QC (acting on instructions on behalf of C W Stevenson) for Defendant Thompson
A N D Garrett for Defendant Chinnock
K H Cook for Defendants Kirkwood and Griffiths
P L Borich (attendance excused) for Defendant Stewart
S J Zindel for Defendants Antonievic and Smith
S G Bailey (attendance excused) for Defendant Daly
R A Harrison for Defendant BuschJudgment:
11 March 2015
JUDGMENT (No 2) OF COLLINS J
Introduction
[1] This judgment is the sequel to my judgment of 20 February 2015,1 and should be read in conjunction with that judgment.
[2] In my 20 February 2015 judgment I concluded that the police had obtained evidence improperly as part of Operations Explorer and Holy, which were undertaken in relation to the Red Devils Motorcycle Club (Red Devils) in Nelson. The defendants are members or associates of the Red Devils. The evidence which was obtained improperly was gathered by the police from June 2010 to March 2011
as a consequence of a false warrant and prosecution scenario which is fully
1 R v Antonievic [2015] NZHC 230.
explained in my 20 February judgment,2 and is referred to briefly in paragraphs [14]
to [15] of this judgment.
[3] The effect of my 20 February judgment is that all evidence obtained by the police from June 2010 to March 2011 will, apart from one category of cases, be excluded from the defendants’ trials pursuant to s 30 of the Evidence Act 2006 (the Act). The exception relates to evidence obtained from June 2010 to March 2011 in relation to “serious” charges. Evidence relating to “serious” charges is admissible even though it was obtained improperly by the police.
[4] The issue as to what charges are “serious” was reserved for a further hearing
which was conducted on 6 March 2015.
[5] This judgment explains which charges are “serious”. My analysis as to which charges pass the threshold of “seriousness” has involved a careful evaluation of the police summaries of facts supplemented by the Crown’s particulars of charges
1 and 23 in the first indictment. In undertaking this aspect of my analysis I recognise
the police summaries of facts have not been tested and ultimately, the evidence at trial may differ from the police assessment of the evidence. However, absent any contested hearing into the relevant evidence I have had to rely on the police summaries of facts. If the police view of the evidence is not established at trial then the affected defendants will be able to bring further applications that may result in charges being stayed or dismissed.
[6] I have also given careful consideration to the extent to which I should have regard to the sentence that is available on conviction. I have endeavoured to follow the approach favoured by Blanchard, Tipping and McGrath JJ in Hamed v R.4 They regarded the maximum penalty as a “generic” indicator that may bear no resemblance to the sentence which a convicted defendant is likely to receive. It is, of
course, essential I not pre-judge any sentence that might be imposed. However,
2 R v Antonievic, above n 1, at [29]-[40].
3 Participating in an organised criminal group, Crimes Act 1961, s 98A. Maximum penalty 10
years’ imprisonment.
4 Hamed v R [2011] NZSC 101, [2012] 2 NZLR 305 at [197] per Blanchard J, [241]-[242] per
Tipping J and [277] per McGrath J.
when assessing the seriousness of alleged offending I have formed a judgement as to the general range of sentences that might be imposed upon conviction.
[7] The evaluation of the “seriousness” of each charge has involved me undertaking a contextual analysis by weighing information in the police summaries of facts, the potential harm to individuals and society from the alleged offending, the extent to which the offending involved “concerted criminal activity”,5 and the general range of sentences that might be imposed upon conviction. Although I have had to determine whether or not each charge is “serious”, I have in fact focused upon
the “seriousness” of the alleged offending.
[8] I acknowledge that the approach I have taken when determining what charges are “serious” ultimately hinges upon my judgement. It is an approach which lacks the formulaic clarity that could be found in the definition of “serious offence” that, between 1 January 1988 and 1 December 2009, formed part of the crime of
participating in an organised criminal group.6 It also differs from the approach taken
by the Court of Appeal in R v Williams7 where it was said, as a general guideline, an offence could be considered “serious” if the sentence starting point was likely to be in the vicinity of four years’ imprisonment or more. The approach taken in R v Williams did not receive support from the Supreme Court in Hamed v R.8
[9] I have, however, endeavoured to apply objective criteria to my assessment, particularly in relation to the drugs charges where I have drawn distinctions between
the classes and quantities of drugs involved. On the basis of the information in the
5 Hamed v R,above n 4, at [69] per Elias CJ.
6 Serious offence means –
(a) An offence punishable by a period of imprisonment for a term of 10 years or more; or
(b) An offence against any of the following provisions of this Act: (i) Section 116 (conspiring to defeat justice):
(ii) Section 117 (corrupting juries and witnesses): (iii) Section 188(2) (wounding with intent):
(iv) Section 189(2) (injuring with intent): (v) Section 191(2) (aggravated injury): (vi) Section 227(ba) (theft):
(vii)Section 257A (money laundering):
(viii) Section 258 (receiving property dishonestly obtained); or (c) An offence against section 6 of the Misuse of Drugs Act 1975; or (d) An offence against section 54 or section 55 of the Arms Act 1983.
…
7 R v Williams [2007] NZCA 52, [2007] 3 NZLR 207 at [135] and [250].
8 Hamed v R, above n 4, at [240]-[241] per Tipping J.
police summaries of facts I have classified the alleged drugs offences as “serious” if they involve Class A controlled drugs. I have also determined the drugs charges are “serious” where the amount of the drugs involved can be determined (by direct evidence or inference) as falling within bands two to four of R v Fatu.9 This means the amounts involved in relation to the allegations of methamphetamine dealing pass the threshold of “seriousness” where five grams or more is involved.
[10] Currently there are 20 defendants facing a total of 148 charges. The defendants’ trials have been split into two groups. The trials of the first group, comprising 11 defendants who face 92 charges are scheduled to commence on 4 May
2015 (Trial 1). The trials of the second group, comprising 10 defendants who face
56 charges, are scheduled to commence in August 2015 (Trial 2). One consequence of this judgment is that the total number of defendants and charges will be significantly reduced. It is likely Trials 1 and 2 will be merged into one trial.
[11] On 26 February 2015 the Crown identified what it considered to be the “serious” charges. On that analysis, 21 of the charges in Trial 1 passed the “seriousness” threshold while another group of charges could be considered “serious” when viewed together and in context. The Crown said 32 of the charges in Trial 1 were not “serious”. However, as I explain in paragraphs [20] and [92] of this judgment, the Crown changed tack at the hearing on 6 March 2015 and submitted that the charge of conspiring to commit grievous bodily harm, and a tranche of possession of firearms charges should also be classified as “serious”. The Crown says 15 of the charges in Trial 2 are “serious”.
Overview of the allegations
[12] The police investigations into the Red Devils commenced in September 2009 after the police became concerned that four members of the Red Devils were based in Nelson. The Red Devils have close connections to the Hells Angels. The police believed the intention behind the establishment of the Red Devils in Nelson was to enable the Hells Angels to gain a foothold in Nelson and that in due course the Red
Devils would evolve into a chapter of the Hells Angels.
9 R v Fatu [2006] 2 NZLR 72 (CA).
[13] The overall police investigation into the Red Devils was called Operation Explorer. One phase of Operation Explorer involved covert evidence gathering through intercepting conversations and telecommunications (texts and telephone calls) which involved some of the defendants. A second phase of the investigation into the Red Devils concerned the deployment of two undercover police officers, who infiltrated the Red Devils. This phase of the police operation was called Operation Holy. Operations Explorer and Holy focused on the defendants’ activities at the Red Devils clubrooms in Natalie Street Nelson and at various other locations in the Nelson region.
[14] Part of Operation Holy involved the police reassuring the Red Devils that the undercover police officers were genuine supporters of the Red Devils. That exercise involved a number of scenarios, including the creation of a false search warrant and the fictitious arrest and prosecution of one of the undercover police officers in the Nelson District Court.
[15] The false warrant and prosecution scenario lasted from June 2010 to March
2011. That scenario has been severely criticised by the High Court and Court of Appeal10 and formed the basis of my 20 February 2015 judgment to exclude the evidence which the police obtained improperly as a consequence of that scenario in relation to all but the “serious” charges.
[16] The charges laid against the defendants upon the termination of Operations
Explorer and Holy covered a wide spectrum of alleged criminal offending.
[17] At the lowest level of alleged offending were a tranche of dishonesty charges. Many of those charges focused upon the defendant Mr Stacey, who is said to have stolen quantities of meat and dairy products he was transporting for a former employer and that he supplied those goods at cheap rates to members and associates
of the Red Devils.11 Another small cluster of dishonesty charges concerned the theft
of petrol from a service station at Hope, south of Nelson.12 The thefts involved
10 R v Antonievic [2012] NZHC 2686; R v Antonievic [2013] NZCA 483, [2013] 3 NZLR 806.
11 Theft by person in a special relationship, Crimes Act 1961, ss 220 and 223(a). Maximum
penalty seven years’ imprisonment.
12 Theft by person in a special relationship, Crimes Act 1961, ss 220 and 223(a). Maximum
Mr Stacey arranging for his partner and associates of the Red Devils to fill their vehicles with petrol and diesel from an unmanned petrol station in Hope. The cost of the fuel was then charged back to Mr Stacey’s former employer. The Crown recognises that none of these dishonesty charges are “serious” when viewed individually. However, the Crown says that when Mr Stacey’s dishonesty offending is viewed cumulatively and in context his offending, passes the threshold of “seriousness”.
[18] At the other end of the spectrum of alleged offending is a number of charges that focus on the defendant Mr Jones. The Crown says Mr Jones was heavily involved in dealing in methamphetamine and other Class A drugs13 and played a major role in purchasing methamphetamine in Auckland and transporting it to Nelson. The role of Mr Jones in the methamphetamine trade is also said to implicate the defendants Mr Stewart, Ms Busch, Mr Antonievic, Mr Daly, Mr Smith, Mr Page
and Mr Hayward, whom the Crown allege assisted Mr Jones in moving significant quantities of methamphetamine from Auckland to Nelson.
[19] Another tranche of charges, which the Crown says are also “serious”, concerns allegations that some defendants unlawfully possessed and supplied firearms. Three defendants, Mr Stacey, Mr Jones and Mr Thompson, are also charged with conspiring to commit arson. The evidence for these charges comes from an undercover police officer who was privy to discussions between the defendants Mr Stacey, Mr Jones and Mr Thompson about making pipe bombs. Part of the discussion involved the placing of pipe bombs against a building occupied by a rival group to the Red Devils.
[20] Seven defendants, namely Mr Hayward, Mr Jones, Mr Lee, Mr Lloyd, Mr Patrick, Mr Rutledge and Mr Stacey are charged with conspiring to commit grievous bodily harm to Mr Tulouna, an associate of the Red Devils. The Crown case is Mr Tulouna annoyed a number of the Red Devils by the way he conducted drug deals and engaged in “stand-over tactics”. The Crown says that on 5 February
2011 an undercover police officer was privy to discussions between a number of the
penalty seven years’ imprisonment.
13 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum sentence life imprisonment.
defendants where it is said the group agreed to smash Mr Tulouna’s legs “if that was
what it would take to stop [Mr] Tulouna from causing problems [for] the Red Devils
…”.14 Initially, the Crown did not consider this alleged offending passed the threshold of “seriousness”. However, the Crown now submits I should consider the conspiracy to cause grievous harm to Mr Tulouna as a “serious” offence.
[21] I will analyse the charges that the Crown says are “serious” by reference to
the following discrete categories of offences:15
(1) Participating in an organised criminal group; (2) Drug possession and dealing;
(3) Conspiracy to commit arson;
(4) Unlawful possession of firearms and explosives; (5) Violence offences; and
(6) Cumulative dishonesty offending.
Participating in an organised criminal group
[22] Charges 1 and 2 in Trial 1 allege the defendants Mr Bashford, Mr Chinnock, Mr Hayward, Mr Jones, Mr Lee, Mr Lloyd, Mr Pahl, Mr Patrick, Mr Rutledge and Mr Stacey participated in a criminal group.16
[23] The alleged offending in the first and second charges covers the periods prior to and subsequent to the false warrant and prosecution scenario which commenced in June 2010. My judgment of 20 February 2015 does not apply to the evidence which
pre-dates June 2010. However, the Crown wishes me to state whether or not the
14 Police Summary of Facts, charge 78.
15 This case can be contrasted with Hamed v R, above n 4, where all of the offending was intertwined.
16 Crimes Act 1961, s 98A. Maximum penalty 10 years’ imprisonment.
alleged offending in charges 1 and 2 is “serious”, regardless of when the offending
took place.
Charge 1
[24] The police summaries of facts, supplemented by the Crown’s particulars of charge 1 in Trial 1, allege the defendants named in charge 1 shared the objective of obtaining material benefits from:
(1) drug dealing undertaken and/or planned at the Red Devils clubrooms;
and/or
(2) their involvement in receiving meat and dairy products from Mr
Stacey which he stole from his previous employer.
Drug dealing
[25] It is alleged that the drug dealing brought power, status and financial rewards to the defendants named in the first charge because it allowed them to have a degree of control over the methamphetamine trade in Nelson.
[26] Many of the allegations against the defendants named in the first charge are comparatively insignificant. The allegations include low-level drug dealing and the supply and consumption of drugs by the defendants at the Red Devils clubrooms.
[27] Counsel for Mr Pahl, Mr Patrick, Mr Bashford, Mr Chinnock, Mr Lee and Mr Stacey have provided a detailed analysis of the evidence against Mr Pahl to illustrate how the allegations against Mr Pahl and other defendants in relation to the criminal group conspiracy charges can be classified as de minimis.
[28] The Crown disputes the appropriateness of the approach taken by counsel for the defendants named in paragraph [27] and say that just because a defendant is on the edges of alleged offending does not diminish the “seriousness” of the offending as a whole. The Crown says “it is not a matter of calculating some sort of batting
average where the presence of a weaker member lowers the collective score for the
whole team”.
[29] In my assessment, while cricket analogies might be fashionable, the approach taken by the Crown is not completely appropriate because I have to assess the alleged offending of each defendant, using the criteria I have set out in paragraph [7] of this judgment.
[30] When Simon France J examined the allegations in this case he said:17
… With the exception of Mr Jones, the drug allegations are mainly at the lower end of the scale. Many relate to sharing or selling within the clubhouse amongst each other, or to visitors …
[31] I agree with Simon France J in relation to the charges which allege possession of insignificant quantities of drugs and supply of small quantities of drugs between the defendants and their associates.
[32] Different considerations would apply if the drug offending referred to in the first charge involved the supply of significant quantities of Class A drugs such as methamphetamine.
[33] When I examine the allegations in relation to the first charge it is apparent that the allegations focus on the alleged criminal group members’ participation in and knowledge of low-level supplying of drugs at the Red Devils clubrooms to fellow members and associates of the Red Devils. I also accept, however, that there may have been visitors to the clubrooms who purchased drugs there, but the potential harm to society by this offending was still low.
[34] I have concluded that the criminal group conspiracy allegations in charge 1 that relate to drug dealing are not “serious”. I have reached this conclusion because the alleged drug dealing at the Red Devils clubrooms was generally low-level offending that appeared to involve insignificant quantities of drugs. This alleged offending involved moderate criminal activity and is unlikely to result in prison
sentences in the event of convictions.
17 R v Antonievic [2012] NZHC 2686 at [57].
Receiving stolen property
[35] I have also concluded the criminal group conspiracy allegations in charge 1 that relate to the supply of stolen meat and dairy products are not “serious”. This offending, if established, was at a low level which may have caused harm to Mr Stacey’s former employer but would be unlikely to result in prison sentences for the defendants in the event of charge 1 being established.
[36] The evidence obtained in relation to the first charge during the period June
2010 to March 2011 is therefore excluded. It will be for the Crown to determine whether or not it wishes to continue with the criminal group conspiracy charge in relation to the evidence obtained prior to June 2010.
Charge 2
[37] The police summaries of facts supplemented by the Crown’s particulars of Charge 2 allege the defendants named in Charge 2 shared the following objectives of committing serious violence offences:
(1) Achieving dominance over a rival gang;
(2) Possessing and using weapons, including firearms and explosives;
and
(3) Planning to cause grievous bodily harm to Mr Tulouna.
Achieving dominance over a rival gang
[38] There is some evidence of discussions between some of the named defendants in charge 2 of engaging in hostilities with a rival group, the Lost Breed Motorcycle Club. My review of the police summaries of facts show, however, such discussions were at a very general level and nothing of any significance appears to have been planned.
Possession of weapons
[39] This element of the second charge in Trial 1 is based on evidence relating to Mr Jones, Mr Stacey and Mr Thompson unlawfully possessing firearms. There is also evidence that these three defendants in conjunction with an undercover police officer discussed the construction of a pipe bomb to be used in relation to premises occupied by the Lost Breed Motorcycle Club.
[40] I deal with the roles of Mr Jones, Mr Stacey and Mr Thompson in relation to their alleged firearms and conspiracy to commit arson offending in paragraphs [74] to [87]. My analysis of the police summaries of facts in relation to the other defendants named in charge 2 is that they were, at the most, very much on the margins of this alleged offending.
Conspiracy to injure Mr Tulouna
[41] As will be made clear in paragraphs [88] to [93] I do not think the alleged conspiracy to cause injury to Mr Tulouna is “serious” because the police summary of facts shows the discussion about injuring Mr Tulouna was conditional on him continuing to aggravate the Red Devils. The defendants’ conduct cannot metamorphosise into “serious” offending simply by changing the nature of the charge to one of participating in a criminal group conspiracy. Further, I conclude in paragraphs [79] to [87] the allegations relating to possession of firearms are not “serious”.
[42] In my assessment, it is unlikely Mr Bashford, Mr Chinnock, Mr Hayward, Mr Lee, Mr Lloyd, Mr Pahl, Mr Patrick or Mr Rutledge would be sentenced to prison for their alleged offending in relation to charge 2. Each defendant’s involvement in this alleged offending is not serious and when I apply the criteria set out in paragraph [7] of this judgment I reach the conclusion that their alleged offending in relation to charge 2 does not pass the threshold of being “serious”. The positions of Mr Jones, Mr Stacey and Mr Thompson in relation to their alleged offending that forms the basis of the evidence against them in charge 2 is more appropriately addressed when considering the firearms and conspiracy to commit arson charges brought against each of them.
Drug possession and dealing
[43] As foreshadowed in paragraphs [25] to [34] many of the drug possession and supply charges relate to the defendants possessing small quantities of drugs and giving or selling small quantities of drugs to their friends and visitors to the Red Devils clubrooms. A number of charges in this category relate to the supply and offering to supply drugs to one or more of the undercover officers. Simon France J accurately categorised this type of offending as being “at the lower end of the scale” of criminal offending. They do not pass the threshold of seriousness.
[44] I have, however, reached a different conclusion in relation to the charges concerning the supply of methamphetamine on a reasonably significant scale. The charges in this category mainly focus upon Mr Jones and his role in either purchasing methamphetamine or arranging for the purchase of methamphetamine from Mr Stewart in Auckland and arranging the delivery of those drugs to Nelson.
Mr Jones
[45] Mr Jones is charged with conspiring to supply methamphetamine and nine charges relating to the supply of methamphetamine.
[46] Some of the evidence in relation to Mr Jones’ methamphetamine trade was
gathered prior to June 2010 and therefore not affected by my judgment of
20 February 2015. However, as the methamphetamine trade charges also depend on evidence obtained after 1 June 2010, I have to determine if the charges in question are “serious”.
[47] Mr Jones’ alleged role in the supply of methamphetamine from Auckland to Nelson also involved the defendants Ms Busch, Mr Antonievic, Mr Hayward Mr Daly, Mr Smith, Mr Page and Mr Stewart, all of whom are said to have conspired with Mr Jones in the methamphetamine trade by arranging the funding of purchases of methamphetamine, transporting methamphetamine and taking other steps to facilitate the alleged criminal offending.
[48] Two of the charges against Mr Jones allege he supplied significant quantities of methamphetamine to an undercover officer (charges 80 and 81).
[49] Charge 76 in the first trial against Mr Jones relates to possession of Lysergide (LSD) for supply.18 This charge is founded on a conversation between an undercover police officer and Mr Jones talking about how at one point Mr Jones had
200 LSD “trips” in a storage container. The alleged level of criminality in this case is solely based upon this conversation. In my assessment, the offending alleged in charge 76 is appropriately classified as passing the threshold of “seriousness” based on sentences imposed for similar offending.19 Accordingly, I conclude charge 76 is “serious” and the evidence obtained by the police in relation to that charge can be adduced by the Crown.
[50] After weighing the factors I have summarised in paragraph [7], I am very satisfied that the methamphetamine trade charges which focus on Mr Jones acquiring methamphetamine in Auckland and arranging its transportation to Nelson involve “serious” charges. If convicted Mr Jones is at risk of being sentenced to a significant period of imprisonment.
[51] In my assessment, the following charges in Trial 1 against Mr Jones involve
allegations of “serious” methamphetamine offending:
Charges 4, 5, 6, 9, 19, 45, 75, 80 and 81, as does charge 76 relating to possession of LSD for the purposes of supply.
[52] The evidence obtained by the police after 1 June 2010 in relation to these
charges may be produced by the Crown at Mr Jones’ trial.
Mr Hayward
[53] Mr Hayward is charged with conspiring to supply methamphetamine and eight charges relating to the supply of methamphetamine and one charge of
18 Misuse of Drugs Act 1975, s 6(1)(c) and (2)(a). Maximum penalty life imprisonment.
19 R v Pitman CA513/95, 12 February 1996. Appellant found guilty of supplying 200 LSD trips and other drug dealing offences. Sentence of five years’ imprisonment upheld. See also R v Stanaway [1997] 3 NZLR 129 (CA).
supplying LSD. The conspiracy charge relates to Mr Hayward accompanying Mr Jones to Auckland on 8 October 2010 where Mr Jones acquired a quantity of methamphetamine from Mr Stewart which Mr Hayward and Mr Jones transported back to Nelson. It is not possible to determine how much methamphetamine was involved in this enterprise. For present purposes I infer a significant quantity was involved because of the obvious planning, cost and care taken in relation to this venture. It is highly likely such arrangements were put in place in order to obtain a significant quantity of methamphetamine. The events of 8 October 2010 also form the basis of one charge against Mr Hayward of possessing methamphetamine for the purposes of supply (charge 51).
[54] Charge 30 against Mr Hayward appears to involve him supplying $2,000 worth of methamphetamine to Mr Stacey. If correct that would place Mr Hayward’s offending within band two of R v Fatu and therefore “serious”.
[55] Charges 36, 39, 40, 42, 47 and 48 appear to involve insignificant quantities of methamphetamine and charge 43 appears to involve an insignificant quantity of LSD.
[56] Charge 51 against Mr Hayward alleges he was involved in the supply of four grams of methamphetamine to a person in Christchurch on 14 October 2010. That alleged offending falls within band one of R v Fatu and is therefore not “serious”.
[57] In my assessment, after considering the criteria referred to in paragraph [7], I have determined the following charges in Trial 1 against Mr Hayward involve allegations of “serious” methamphetamine offending:
Charges 4, 30 and 45.
[58] The evidence obtained by the police after 1 June 2010 in relation to these
charges may be produced by the Crown at Mr Hayward’s trial.
[59] I now explain whether or not the charges in Trial 2 against Mr Stewart, Ms Busch, Mr Antonievic, Mr Daly, Mr Smith and Mr Page relating to their “collaboration” with Mr Jones are “serious”.
Mr Stewart
[60] Mr Stewart faces one charge of conspiring to supply methamphetamine, seven charges of supplying methamphetamine and one charge of possessing methamphetamine for the purposes of supply. These charges form part of Trial 2. The Crown placed Mr Stewart at tier one of the conspiracy to supply methamphetamine as he was the person in Auckland who supplied Mr Jones with the methamphetamine which Mr Jones either transported himself or arranged to be transported to Nelson by others.
[61] The police evidence suggests on 18 March, 11 April and 21 June 2010
Mr Stewart supplied quantities of methamphetamine to Mr Jones and Ms Busch, which Ms Busch then took to Nelson. On 19 July 2010 Mr Stewart supplied Ms Busch and Mr Antonievic with a quantity of methamphetamine, which Mr Antonievic took to Nelson on 21 July 2010.
[62] On 22 November 2010 Mr Stewart is alleged to have sent by courier a package of methamphetamine to an address in Blenheim. The police intercepted that package. It was found to have four grams of methamphetamine valued at approximately $4,500. The charge arising from this incident falls within band one of R v Fatu and therefore falls below the threshold of being “serious”.
[63] On 11 February 2011 Mr Stewart is alleged to have supplied Mr Jones with approximately eight grams of methamphetamine, which Mr Jones sold to an undercover officer for $9,000. The police say Mr Jones paid that money to Mr Stewart later that day.
[64] Apart from in relation to two charges, Mr Stewart appears to have been heavily involved in the supply of what I infer were significant quantities of methamphetamine. This alleged offending involved careful planning, potential risk to society and individual users of the methamphetamine in question. Mr Stewart is
at risk of a significant prison sentence if he is convicted. I am therefore satisfied six of the charges against Mr Stewart are “serious”. The charges in question are charges
1, 4, 7, 12, 22 and 25 in the second trial.
Ms Busch
[65] Ms Busch is charged with one charge of conspiring to supply methamphetamine, and four charges of supplying methamphetamine. These charges form part of Trial 2. Ms Busch’s alleged offending ceased when she moved to Australia in December 2010. The Crown places Ms Busch at tier two of the conspiracy to supply methamphetamine charge.
[66] The evidence obtained by the police suggests Ms Busch assisted Mr Jones by channelling money obtained from the sale of methamphetamine through a bank account in her name. There are eight deposits into this account ranging in size from
$600 to $3,500 from 28 May 2010 to 26 July 2010, which the police say relate to
Mr Jones’ drug dealing.
[67] The police also say Ms Busch went to Auckland at Mr Jones’ behest to uplift methamphetamine on 18 March, 11 April, 25 June and 19 July 2010. The police summaries of facts do not provide details of the amount of methamphetamine obtained by Ms Busch on each of her trips to Auckland. I am, however, willing to infer for present purposes that it is likely substantial quantities of methamphetamine were involved and the quantities are likely to be within at least band two of R v Fatu. I have reached this conclusion because of the level of planning, care and cost that was associated with these ventures. These factors strongly indicate Ms Busch was involved in acquiring and transporting significant quantities of methamphetamine to Nelson.
[68] Ms Busch’s role in this alleged offending passes the threshold of “seriousness” because the offending involved significant planning and “concerted criminal activity”. Ms Busch’s alleged offending posed serious risks to society and individuals and places her at risk of being sentenced to prison if she is convicted. I therefore conclude that the Crown may adduce the improperly obtained evidence in
relation to all charges against Ms Busch, namely charges 1, 3, 5, 8 and 13 in the second trial.
Mr Antonievic
[69] Mr Antonievic faces one charge of conspiracy to supply methamphetamine and one charge of supplying methamphetamine. These charges form part of Trial 2. The Crown places Mr Antonievic in the third tier of those involved in the conspiracy to supply methamphetamine charge.
[70] Mr Antonievic appears to have made one trip to Auckland with Ms Busch to bring back a quantity of methamphetamine acquired from Mr Stewart. It is not possible to assess exactly how much methamphetamine was involved for the reasons I have outlined in paragraph [67] but I am prepared to infer for present purposes that it was significant and that at this stage, I should classify Mr Antonievic’s alleged offending in relation to the supply of methamphetamine as passing the threshold of “seriousness”. His role in the conspiracy appears to have been minor and in itself not “serious”.
Mr Daly, Mr Smith and Mr Page
[71] Mr Daly, Mr Smith and Mr Page are placed by the Crown in tier three of the conspiracy to supply methamphetamine charge. Mr Daly also faces one charge of supplying methamphetamine.
[72] Mr Daly went to Auckland to obtain methamphetamine from Mr Stewart on one occasion but aborted the venture. There is no evidence Mr Daly, Mr Smith or Mr Page actually acquired any methamphetamine from Mr Stewart. In these circumstances I conclude that their alleged offending was low-level and below the threshold of “seriousness”.
Mr Thompson
[73] Mr Thompson faces one charge of possessing methamphetamine for the purposes of supply (charge 91 in Trial 1) and one charge of supplying LSD (charge 74 in Trial 1). The amount of LSD in relation to charge 74 appears to be
insignificant. The same cannot be said about the amount of methamphetamine referred in relation to charge 91. The police say five grams of methamphetamine was found in Mr Thompson’s possession. This places his offending into band two of R v Fatu. After applying the factors I have set out in paragraph [7] of this judgment I conclude charge 91 against Mr Thompson is “serious”.
Conspiracy to commit arson
[74] Three defendants, Mr Jones, Mr Stacey and Mr Thompson are charged with conspiring to commit arson.20
[75] This alleged offending was observed by an undercover police officer who, on
23 January 2011 participated in a detailed discussion between the three defendants about making pipe bombs which could apparently be detonated by a cell phone. Mr Thompson is said to have explained in detail how he made pipe bombs. The discussions also allegedly involved how the pipe bombs would be placed against a building occupied by the Lost Breed Motorcycle Club.
[76] At a subsequent meeting Mr Thompson is said to have supplied the undercover police officer with plans for a bomb that Mr Thompson wanted the undercover police officer to assist with making.
[77] I am satisfied that this alleged offending passes the threshold of “seriousness” because the alleged offending involves a high level of criminality, was potentially very dangerous and may result in a period of imprisonment if the defendants are convicted.
[78] The evidence gathered by the police in relation to this offending may therefore be produced by the Crown at the trials of Mr Jones, Mr Stacey and
Mr Thompson.
20 Crimes Act 1961, s 231(1)(a). Maximum penalty 10 years’ imprisonment.
Unlawful possession of firearms and explosives
[79] The defendants Mr Jones, Mr Stacey and Mr Thompson in the first trial and the defendant Mr Daly in the second trial face a number of charges of having unlawful possession of firearms. In addition, the defendants Mr Thompson and Mr Daly are charged with having unlawful possession of explosives.
[80] On 4 August 2010, the defendant Mr Jones received a shotgun from an associate. Mr Jones was not licensed to own a firearm.
[81] In October 2010, the defendant Mr Stacey was seen by an undercover police officer to have possession of a sawn-off semi-automatic rifle that had a pistol grip. Mr Stacey gave that firearm to the undercover police officer for safekeeping. On
19 December 2010, Mr Stacey retrieved that weapon from the undercover police officer. On 25 February 2011 Mr Stacey gave that firearm back to the undercover police officer. These three separate events resulted in Mr Stacey facing three charges of unlawful possession of a firearm.
[82] On 23 January 2011, the undercover police officer ascertained Mr Thompson had possession of the firearm that is the focus of the charges against Mr Stacey. On
4 March 2011 the undercover police officer received from Mr Thompson a Remington shotgun, a Ruger semi-automatic rifle and sold the undercover police officer a Remington rifle.
[83] When Operations Explorer and Holy were terminated the police located 13 fully assembled firearms and a number of parts of firearms at Mr Thompson’s house. Mr Thompson has been charged with three counts of unlawful possession of these firearms.
[84] The police also located at Mr Thompson’s home a significant quantity of ammunition and two metal pipes containing a live 20 gauge shotgun cartridge, black powder and wiring.
[85] On 11 March 2011, the police searched Mr Daly’s home and found a sawn- off Liege shotgun with a modified pistol grip. The police also found in Mr Daly’s home six shotgun cartridges.
[86] I have obvious concerns about any of the defendants having unlawful possession of firearms. However, the firearms offences have to be viewed in context. The firearms charges allege unlawful possession of those weapons. Those offences carry a maximum penalty of four years’ imprisonment and a $5,000 fine.21
In my assessment, this offending falls just short of the “seriousness” threshold as
does the possession of explosive charges which relate to cartridges and ammunition rounds found at Mr Daly’s and Mr Thompson’s homes.
[87] The pipe bomb device found at Mr Thompson’s home on 11 March 2011 however, falls into a different category. That alleged offending appears to me to be more sinister and is likely to be connected with the conspiracy to commit arson charge which I have already categorised as being “serious”. Therefore, that charge (charge 94 in Trial 1) falls within the category of “serious” charges.
Violence offences
[88] The defendants Mr Hayward, Mr Bashford, Mr Chinnock, Mr Jones, Mr Lee, Mr Lloyd, Mr Patrick, Mr Rutledge and Mr Stacey in the first trial are all charged with conspiring to cause grievous bodily harm to Mr Tulouna.22
[89] This offending is said to have occurred in Motueka on 5 February 2011 and stemmed from “trouble” Mr Tulouna was causing members of the Red Devils because of the way he conducted drug deals and by the way he attracted attention through his “stand-over” tactics.
[90] An undercover police officer attended the meeting on 5 February 2011 and heard members of the group say that they would visit Mr Tulouna and smash his legs if that was what it would take to stop Mr Tulouna from causing problems for the Red Devils.
[91] In addition, Mr Hayward and Mr Daly face charges of threatening to kill Mr Tulouna when on separate occasions each told the undercover police officer how he wanted to get rid of Mr Tulouna.23 The Crown accepts, however, that these two charges are not “serious”.
[92] Initially the Crown advised that the conspiracy to cause grievous bodily harm to Mr Tulouna was not “serious”. However, on reviewing matters Mr O’Donoghue took a different approach and advised the Court and counsel on 6 March 2015 that in his assessment, the conspiracy to commit grievous bodily harm to Mr Tulouna passed the threshold of “seriousness”.
[93] After weighing the factors summarised in paragraph [7] I am satisfied that the conspiracy to commit grievous bodily harm falls below the threshold of “seriousness”. That charge concerned a discussion of inflicting serious harm to Mr Tulouna if he failed to change his ways and adhere to the standards of behaviour expected of the Red Devils. There is no evidence any attempt was made to give effect to the discussion. Accordingly, I conclude this charge is not “serious” and the evidence obtained by the police in relation to this charge cannot be adduced by the Crown.
Cumulative dishonesty offending
[94] As I have explained in paragraph [17], the Crown accepts that the dishonesty charges against Mr Stacey are not “serious” when viewed individually. The Crown says, however, that these low-level offences are “serious” when considered together and in context. Mr Stacey’s alleged offending involved repeated and highly premeditated theft of a large quantity of meat, fuel and other products from his former employer when he occupied a position of trust. The Crown has laid nine charges of theft by a person in a special relationship against Mr Stacey in relation to
this offending. There are also three charges of burglary.24 In relation to two of the
burglary charges, the Crown says Mr Stacey broke into his former employer’s premises and took meat and dairy products from those premises. The third burglary charge relates to the alleged taking of a trailer by Mr Stacey.
[95] In my assessment, the accumulation of several low-level offences involving theft of meat, petrol, and other products, together with three minor burglaries does not elevate the totality of the offending in question above the threshold of “seriousness”. The assessment of whether the combined effect of Mr Stacey’s alleged dishonesty offending passes the threshold of “seriousness” involves a contextual evaluation taking into account the factors I have referred to in paragraph [7]. Having undertaken that exercise I conclude that when viewed cumulatively and in context the dishonesty charges are not “serious” and that the evidence obtained by the police in relation to those charges cannot be adduced by the Crown.
Conclusion
[96] The following charges pass the threshold of being “serious”:
Trial 1
Defendant
Charge
Jones
4, 5, 6, 9, 19, 45, 68, 75, 76, 80 and
81Hayward
4, 30 and 45
Stacey
68
Thompson
68, 91 and 94
Trial 2
Stewart
1, 4, 7, 12, 22 and 25
Busch
1, 3, 5, 8 and 13
Antonievic
14
[97] No other charges meet the threshold of “seriousness”. Evidence obtained by the police from 1 June 2010 to 11 March 2011 in relation to the remaining charges cannot be produced by the Crown because that evidence is excluded pursuant to s 30
of the Act.
Solicitors:
Crown Solicitor, Nelson
Bamford Law, Nelson for Defendants Jones and Lloyd
Rout Milner Fitchett, Nelson for Defendant Rutledge
Spear Law, Nelson for Defendant Hayward
Zindels, Nelson for Defendants Antonievic and Smith
D B Collins J
5
5
0