R v Apiata
[2024] NZHC 1076
•17 May 2024
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGĀREI-TERENGA-PARĀOA ROHE
CRI-2021-088-002754
[2024] NZHC 1076
THE KING v
PATARIKA APIATA
and
GLENN COOK
Hearing: 06 – 9 May 2024 Appearances:
B M O’Connor, A J Goodwin for the Crown A M Ives, C S Taylor for Patarika Apiata
W T Nabney, E R Nabney for Glenn Cook
Judgment:
17 May 2024
JUDGMENT OF WHATA J
Solicitors:
Marsden Woods Inskip Smith (Office – Crown Solicitor), Whangarei
A M Ives, Auckland C S Taylor, Ruakaka
W T Nabney, Tauranga
R v PATARIKA APIATA [2024] NZHC 1076 [17 May 2024]
[1]Mr Cook has pleaded guilty to:
(a)Conspiracy to manufacture methamphetamine between 1 April 2021 and 12 November 2021.
(b)Conspiracy to supply methamphetamine between 27 September 2021 and 12 November 2021.
(c)Possession of a controlled drug for the purpose of supply between 1 November 2021 and 4 November 2021.
(d)Participation in an organised criminal group between 3 March 2020 and 12 November 2021.
(e)Failure to carry out obligations in relation to computer system search 12 November 2021.
(f)Unlawful possession of a prohibited firearm 27 August 2021.
[2]Mr Apiata has pleaded guilty to:
(a)Conspiracy to manufacture methamphetamine between 1 August 2021 and 12 November 2021.
(b)Supply of methamphetamine (representative) 1 August 2021 and 12 November 2021.
(c)Supply of methamphetamine (representative) between 6 October 2021 and 10 October 2021, particulars, 14 ounces to Carlyn Anderson.
(d)Participation in an Organised Criminal Group between 1 August 2021 and 12 November 2021.
[3] They are both presently also charged with manufacturing methamphetamine together with Tupaea Kerr in the period 30 September 2021 to 6 October 2021, but these charges are to be withdrawn at sentence.1 The Crown nevertheless claims the fact of this manufacture is relevant as an aggravating feature of the conspiracy to manufacture. The Crown also claims that Mr Apiata made a profit in the order of
$480,000 from the supply of methamphetamine and was high up in the hierarchy in the conspiracy. These claims are disputed.
The Crown’s narrative
[4] Operation Freya was a joint Police and Customs investigation that detected offending from March 2020 to 12 November 2021. Most relevantly for present purposes, Mr Cook and Mr Apiata were part of a syndicate who, among other things, conspired to manufacture methamphetamine. The syndicate included Kauri Kerr, Herbert Rata, Tupaea Kerr, Tikellah Puru, lti Arama, Taioma Gillett, Marcella Griffen, Jodie Kerr, Levi Tali, Jordan Hokai, Todd Hilton, and Lynne Kilgour.
[5] On the Crown case, Mr Kauri Kerr was the leader of the syndicate. He obtained methamphetamine from various sources, including via importation, local purchase, and manufacture. He issued instructions to the syndicate members to perform tasks in further of this methamphetamine conspiracy. For example, under Mr Kerr’s instructions, Mr Cook carried out various tasks for the syndicate including retrieving a parcel of imported methamphetamine, purchasing iodine solution and iodine pellets for the purpose of a manufacturing methamphetamine, and was actively involved in the manufacture of methamphetamine in late September, early October 2021.
[6] Mr Apiata, also under Mr Kerr’s instruction, was active in trying to source iodine to produce methamphetamine, and like Mr Cook, was involved in its manufacture in late September, early October 2021. He also sold methamphetamine sourced by or manufactured for Kauri Kerr to his key and only customer, Carlyn Anderson at $7000 an ounce, making a profit of $4000 per ounce. Over a period of
1 Mr Tupaea Kerr was sentenced on 9 May 2024 on one charge of participating in an organised criminal group and one charge of failing to carry out obligations in relation to a computer system search. The allegation that he manufactured methamphetamine was not claimed as an aggravating feature of his offending. See R v Kerr [2024] NZHC 1062.
eight weeks, he sold between 54 ounces and 120 ounces to Carlyn Anderson, and he amassed cash and assets worth about $215,000. His total potential profits from the methamphetamine offending are assessed at about $480,000.
The defence narrative
[7] Both Mr Apiata and Mr Cook deny manufacturing methamphetamine at any time, and Mr Apiata denies that he earned a profit of $480,000 or amassed assets worth
$215,000. Mr Cook says that he was only a gopher who sometimes gathered in some of the chemicals required to manufacture methamphetamine and picked up delivery of imported methamphetamine at the direction of Kauri Kerr and that there is no evidence he was present during any manufacture of methamphetamine that may have occurred. Mr Apiata says while he sold methamphetamine, he did not make it or help make it and that the alleged profits are grossly exaggerated.
Disputed facts
[8]With the benefit of submissions, the key disputed issues of fact are:
(a)Whether the syndicate manufactured methamphetamine.
(b)Whether Mr Cook and/or Mr Apiata was involved in the manufacture of methamphetamine.
(c)Whether the syndicate manufactured 2.4 kg of methamphetamine.
(d)Whether Mr Apiata was selling methamphetamine at a profit of about
$4000 an ounce, selling between 54 and 120 ounces over 8 weeks.
Threshold
[9] The threshold for disputed facts resolution is set at s 24 of the Sentencing Act. Section 24 states:
(1)In determining a sentence or other disposition of the case, a court—
(a) may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e) either party may cross-examine any witness called by the other party.
(3)For the purposes of this section, —
aggravating fact means any fact that—
(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[10] It is common ground that if a manufacture has taken place, then this would be an aggravating factor for sentencing. The key matter for determination therefore is whether I am satisfied that the Crown has proven beyond reasonable doubt the
existence of the methamphetamine manufacture, Mr Cook and Mr Apiata’s involvement in it, and the extent of Mr Apiata’s role and profit.
[11] In approaching this task, I am mindful that both defendants have a right to remain silent and I must not infer guilt from their silence alone. It may be that in some circumstances I may be able to take into account their silence when considering whether to accept all or part of the submissions from their counsel. I return to this possibility below. However, irrespective, neither defendant is obliged to prove anything, and even if I do not accept their respective explanations for what happened at all or only in part, I must still be satisfied on the evidence produced by the Crown that the aggravating facts alleged by the Crown have been proven beyond reasonable doubt.
Whether the syndicate manufactured methamphetamine
[12] I will shortly turn to outline evidence relied upon by the Crown to show that the syndicate manufactured methamphetamine. There are three preliminary observations. First, the Crown case relies heavily on evidence of communications between the syndicate members. As explained by Detective Sergeant Wilson and Detective Senior Sergeant Verry, drug syndicates often use obscure terminology to describe what they are doing. This means that apparently innocuous terms may be used to describe elements of the alleged offending. For example, iodine is sometimes referred to as a “body part”. To address this, in the analysis of communications that follows, I have provided Detective Verry’s interpretation of what was likely to have been said in parentheses.
[13] Second, Detective Wilson provided a helpful summary of the process of manufacturing methamphetamine. For present purposes it is necessary to note the following:
(a)Three key ingredients are needed to manufacture methamphetamine: Iodine, Hypophosphorous Acid and Ephedrine or Pseudoephedrine.
(b)These substances are typically combined at a ratio of 1 kg: 1 L: 1 kg respectively. This combination will produce 500 g – 750 g of the final product methamphetamine.
(c)A 20-litre container of liquid stock iodine solution will yield approximately 800 g of extracted iodine solid.
(d)When combined these substances produce a violent reaction, so this process is usually carried out in a reaction vessel called a parr bomb – a heavy gauge vessel metal cylinder. Often the parr bombs found on the termination of an investigation are capable of producing between 50 g and 500 g of methamphetamine.
(e)Once the reaction is finished, the reaction mixture is combined with caustic soda and water until its pH reaches a certain level at which point the methamphetamine base moves out of the mixture and forms an oil layer at the top.
(f)This layer is then separated out into a form of hydrochloride salt. This is called salting out. This creates a white powder floating in the solution.
(g)From here a washing out process takes place, where the powder is washed out with a solvent in order to remove impurities.
(h)Once filtered, the wet crystalline powder is dried. This is called “vapping off” or the product being “vapped”. It is not uncommon for cooks to use an electric fan or hair dryer in an effort to increase the rate of evaporation.
[14] Third, there is no objection to the cross admissibility of the communications evidence relied upon by the Crown. For completeness, I note:2
2 Evidence Act 2006, s 22A.
(a)Given the guilty pleas, there was reasonable evidence of a conspiracy, involving the defendants, to manufacture methamphetamine.3
(b)The statements referred to below were made in furtherance of the conspiracy in that they were all made as part of the natural process of making the arrangements to carry out the conspiracy.4
(c)In forming my view of this evidence, I have remained mindful that there has not been the opportunity to cross examine co-defendants on what they said and that I must not make an adverse finding merely on what they have said.5
The Crown’s evidence
[15] The Crown refers to the following evidence to show that the syndicate, including Mr Cook and Mr Apiata, manufactured methamphetamine:
(a)While there is no direct evidence that the syndicate had all the required ingredients to manufacture methamphetamine, the communications between key participants shows that one was completed.
(b)Communications identifying that the syndicate had sought and had obtained iodine for the purpose of manufacture, including the following messages:6
(i)Patarika Apiata to UKM 1 October 2021 at 09:35
PA: “…got to wait until we are thinging again” (referring to the manufacturing process).
PA: “…we um got another one of those body parts…”, “but only one, that’s better than none” (referring to iodine).
3 Applying R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [14].
4 Kayrouz v R [2014] NZCA 139 at [35].
5 Applying R v Messenger, above n 3, at [22]
6 The following communications were intercepted from the defendant Patarika Apiata (PA), an unknown male (UKM), Kauri Kerr (KK), Tupaea Kerr (TK), Todd Hilton (TH), an unknown female (UKF), Jordan Hokai (JH), Levi Tali (LT) and Carlyn Anderson (CA).
(ii)Tupaea Kerr to Kauri Kerr 2 October 2021 at 13:02
TK: “Hey cuz we’ve finished cuz” (referring to a step in the manufacture process, most likely the obtaining of usable iodine).
(iii)Kauri Kerr to Todd Hilton 2 October 2021 at 13:03
KK: “Hey dad … those fellas finished” (referring to the completion of a step in the manufacture process ).
(iv)Patarika Apiata to UKM 3 October 2021 at 14:38
PA: “yeah, yeah, yeah, I just kinda really need that fucken thing now its, fuck I’ve got nothing, where’s, no one seems, no ones got nothings” (referring to not having iodine).
(v)Kauri Kerr and UKF 4 October 2021 at 14:39
KK: “Yep yeah, I was just, I was just telling him um, that I was looking for something and he said you were saying something about it.”
UKF: “Looking for, oh”, “oh yeah yeah”
KK: “a body part” (referring to searching for iodine)
(vi)Kauri Kerr and Jordan Hokai 4 October 2021 at 17:08
KK: “…go down to Cookies brother and tell him that I need um, two of those things” (referring to the iodine).
JK: “I think he said that’s all that was left, but, yep.”
KK: “Ahh, tell him to fuck up brother, yeah just tell him I need two of those things anyway.”
(vii)Kauri Kerr to Levi Tali 4 October 2021 at 17:09
KK: “…tell Cookie to bring them down…” LT: “To bring what down there?”
KK: “He knows, um Jordan, tell, Jordan to tell him to bring”, “Yep sweet, tell Cookie to, not Jordan, tell Cookie not Jordan” (referring to the iodine).
(viii)Levi Tali to Kauri Kerr 4 October 2021 at 17:22
LT: “…Cookie’s doing what you said” (referring to iodine extraction for manufacture).
(ix)Jordan Hokai and Kauri Kerr 5 October 2021 at 15:23
JH: “Cooks has gone to do his stuff and he’s left something with me.”
KK: “Ah yep all good,”
JH: “if, what do you want me to do with it? Just chuck it…” KK: “Um nah you can just drive it over tomorrow”
JH: “I’ve, I’ve been pulled over twice.” (referring to bringing the iodine over and Jordan Hokai expressing concern about being pulled over).
(x)Kauri Kerr and Todd Hilton 5 October 2021 at 19:24
KK: “Well what’s up has he finished?”
TH: “Yeah, yeah he’s, yeah that’s all ready” (referring to the methamphetamine manufacture).
KK: “Ah yeah all good um fuck I di…I didn’t get what I needed. So I only got enough to do the one.” (referring to iodine for the one cook).
…
TH: “weren’t you waiting for some, some mixture or something?” (referring to more iodine).
KK: “yeah … I said there isn’t…”
TH: “So we’ll just carry on, we’ll just carry on eh?” (referring to being instructed to carry on).
KK: “Yeah okay, all good sweet.”
(xi)Todd Hilton and Kauri Kerr 6 October 2021 at 21:58
TH: “Yeah there’s two four here bro” (referring to 2.4 kg of methamphetamine).
KK: “I’ll come back down there aye and have a look.”
(xii)Patarika Apiata and Carlyn Anderson 6 October 2021 at 22:08
PA: “How’s things?”
CA: “Dry, fucken dry”
…
PA: “Um ah, so I’ll bring um, four aye?” (referring to Carlyn Anderson being without any methamphetamine, and Mr Apiata saying he will bring four ounces).
(xiii)Kauri Kerr to Patarika Apiata 7 October 2021 at 11:36
KK: “Hey brother can you um, give the bro like, $40 to get some containers please”
PA: “Yeah, fuck course.”
KK: “Tell him to get some containers before he comes…” (referring to containers to store the methamphetamine).7
(xiv)Patarika Apiata to UKM 7 October 2021 at 10:05
PA: “My bro, I will give you two and a half” UKM: “what”
PA: “two and a half” (an offer to buy iodine).
…
PA: “As soon as I get back can we go to the shop, you know what I mean aye?”
UKM: “Yep”
PA: “Um, I’ll give you a whole one for nothing” (referring to an ounce of methamphetamine for nothing, in exchange for facilitating acquiring iodine).
…
PA: “Yeah okay, but the deal is 6 at 2 and a half” (referring to purchasing iodine).
(xv)Patarika Apiata to UKM 7 October 2021 at 13:13
UKM: “yeah so there’s 5 of them…” (referring to there only being 5 kg of iodine available instead of 6).
(xvi)Patarika Apiata to UKM 7 October 2021 at 13:17
7 Note this is said to show they produced a limited amount because $40 does not buy many containers.
PA: “Um bro um those things are round ones aye…” (referring to iodine pellets).
PA: “…that’s 12 and a half” (referring to thousands of dollars).
(xvii)Patarika Apiata to UKM 7 October 2021 at 15:24
PA: “…I need some, um, I got um, some iodine”.
PA:“…just puts me at a halt until I can get some more of that”…“five keys” (referring to iodine).
(xviii)Patarika Apiata to Carlyn Anderson 7 October 2021 at 15:38
PA: “I can’t of, can’t do anything until I get some more of that fucken piece…” (referring to iodine).
(xix)Kauri Kerr and Patarika Apiata 8 October 2021 at 10:24
KK: “Herb come over before and was saying, um, they can go through the border and grab that thing” (referring to obtaining iodine while under a COVID lockdown).
(xx)Kauri Kerr and Patarika Apiata 8 October 2021 at 10:30
PA: “… can’t that fella (Cook) do it anymore? … the bro at the blue house and, his missus” (referring to Mr Cook travelling across the COVID border to obtain iodine for the syndicate).
(xxi)Patarika Apiata and Carlyn Anderson 10 October 2021 at 14:52
CA: “…one was um, was unsmokeable, and I’m like what?”
PA: “Nah. My bro. Straight up I’m telling you, I was, I was the one that, when it was all done I watched it all get, ya know, vapped and everything, I was the one who scooped out.”
…
PA: “if they’re all in the same pot … They, if, if one’s fucked, they’d all be fucked” (referring to the methamphetamine supplied by Mr Apiata to his customer, Ms Anderson).
The Crown case on the manufacture
[16]The Crown contends this communication evidence clearly shows that:
(a)In early October the syndicate was searching for iodine.
(b)On 2 October 2021, Tupaea Kerr notified Kauri Kerr that they had “finished” one part of the methamphetamine process.
(c)On 3 and 4 October 2021 Mr Apiata and Kauri Keer were respectively trying to source more iodine (“body part”).
(d)On the same day, Kauri Kerr issues instructions to Jordan Hokai to tell Mr Cook to bring his iodine (“things”) to Kauri Kerr.
(e)On 5 October Kauri Kerr tells Jordan Hokai to bring Mr Cook’s iodine to him, and Jordan Hokai expresses concern about getting pulled over by the police.
(f)The same day, Todd Hilton tells Kauri Kerr that they are ready to do the cook. Kauri Kerr says he only had enough iodine for one cook but not to wait for any more iodine, and Todd Hilton says he will carry on completing the cook.
(g)On 6 October 2021 Todd Hilton tells Kauri Kerr that they have made
2.4 kg (“two four”) of methamphetamine.
(h)10 minutes later, Mr Apiata is promising to bring four ounces to Carlyn Anderson who is completely out of methamphetamine – and it is undisputed that he supplied her with four ounces that day.
(i)The next morning Kauri Kerr issues an instruction to Mr Apiata to provide money to an associate so he can buy 10 containers to collect the methamphetamine.
(j)On 10 October 2021 Carlyn Anderson says someone has complained that the methamphetamine is unsmokable, and Mr Apiata says that he saw it "vapped” and he scooped it out himself, thus confirming that the manufacture took place with his involvement.
Mr Cook’s case on the manufacture
[17] Mr Nabney submits the evidence falls short of establishing that a manufacture in fact occurred. He notes that Detective Verry conceded that he could not say what was finished on 2 October 2021 and that the evidence shows ongoing efforts were made to obtain Iodine after that date. It logically follows, Mr Nabney submits, that without Iodine no methamphetamine can be manufactured. Mr Nabney accepts that Mr Kerr’s conversation with Todd Hilton refers to having enough to do one, which is assumed to be one cook or one batch. But Mr Nabney submits that because the Police cannot specify what is being discussed we cannot be sure that they were referring to the manufacture of methamphetamine.
[18] Mr Nabney further submits that the availability of methamphetamine at the time may be explained by the importation undertaken by Mr Kerr previously. He also says that the references to “vapped” maybe referring to the washing of imported product. Overall, therefore, in the absence of any evidence of a lab having been found and there being other ways to obtain methamphetamine, it would be unsafe to make any finding that a manufacture in fact occurred.
Mr Apiata’s case on the manufacture
[19] Ms Ives for Mr Apiata acknowledges that Mr Apiata played an important role in the overall offending, that he participated in an organised criminal group, he conspired to manufacture methamphetamine by attempting to secure iodine and supplied 14 ounces of methamphetamine to Carlyn Anderson along with another unquantified sum of methamphetamine. But she says the Crown cannot prove an actual manufacture of methamphetamine to the requisite standard.
[20]More specifically Ms Ives submits that:
(a)The reference to “two four” could plausibly be a reference to cannabis, to money, to extracted iodine or to a different quantum of methamphetamine for example 240 g.
(b)Reliance on Tupaea Kerr’s communication is misplaced, especially as he was convicted only on one charge of participation in a organised criminal group, without any particulars as to his specific involvement.
(c)There are multiple possible scenarios being discussed in the communications. For example, Detective Verry conceded that “it could be possible that one scenario is that they didn’t do a cook because they didn’t have the iodine or another scenario which is shown by several of the calls where they refer to only having enough for one is he’s unable to achieve his business aim and maybe had to do a cook on a lesser scale but wants to continue to manufacture methamphetamine.”
(d)The suspected addresses where the alleged manufacture took place were heavily monitored, with no reference to Mr Apiata.
(e)Mr Apiata’s comments about the ‘vapping’ and ‘scooping out’ could plausibly have related to an importation and signify at most that Mr Apiata may have been present at the later stages of the methamphetamine process not that he undertook an active role.
(f)In any event, Mr Apiata’s comments to Ms Carlyn Anderson about observing the “vapping” process and “scooping out” the methamphetamine must be seen in context. Mr Apiata was plainly unguarded in his comments. Moreover, his word cannot be relied upon as it is plain that he is prone to telling lies for example to his friends about his success. I will return to these “lies” below when dealing with Mr Apiata’s profits. The central point made by Ms Ives for present purposes is that his claim to having been present at the manufacture was a lie to justify the quality of the methamphetamine he sold.
Assessment
[21] I am satisfied beyond reasonable doubt that the syndicate completed a manufacture of methamphetamine in late September or early October 2021. More specifically, the messages detailed above, and other evidence support a reasonable inference that:
(a)The syndicate set out over the course of weeks if not months to obtain usable iodine for methamphetamine manufacture.8
(b)Iodine was obtained, albeit only enough to complete one batch.9
(c)A manufacture was completed on 5 and 6 October 2021.10
(d)The syndicate sold methamphetamine shortly after the manufacture.11
[22] In this regard, as the Crown submits, the exchanges between the syndicate members in the period 2 October 2021 to 6 October 2021 are strongly supportive of a finding they were involved in a methamphetamine production over this period:
(a)On 2 October 2021 Tupaea Kerr tells Kauri Kerr that “we’ve finished cuz”. While this comment in isolation is ambiguous as to what is being referred to, when placed into context of the admitted conspiracy, and other subsequent comments, it is reasonable to infer that this refers to the production of usable iodine. I note in this regard that Mr Cook does not dispute that he was involved with purchasing iodine for the syndicate prior to this period.
(b)On 4 October 2021, Kauri Kerr says to Jordan Hokai “go down to Cookies brother and tell him that I need um, two of those things”. This, again in context, logically refers to the iodine obtained or extracted by Mr Cook.
8 See communications above at [15] (b)(i), (iv), (v), (vi), (vii), (viii), and (ix).
9 See communication above at [15](b)(x).
10 See communication above at [15](b)(xi).
11 See communication above at [15](b)(xii).
(c)Jordan Hokai tells Kauri Kerr on 5 October 2021, “Cooks has gone to do his stuff and he’s left something with me”. This again logically refers to the iodine obtained or extracted by Mr Cook discussed in the previous communication. Significantly, Jordan Hokai raises concerns about being picked up by police when asked to bring what Mr Cook left with him, strongly suggesting that whatever he was carrying was an illicit substance.
(d)Four or so hours later, Kauri Kerr asks Todd Hilton “has he finished?” to which Todd replies “Yeah yeah he’s, yeah that’s all ready”. Kauri Kerr then says, “So I only got enough to do the one” and Todd Hilton later says “So we’ll just carry on, well just carry on eh?” Kauri Kerr replies “yeah okay all good sweet.” This dialogue logically refers to the iodine obtained by Kauri Kerr from Jordan Hokai and to the manufacturing process. The only other possible explanation is that it refers to a cannabis operation. But there is nothing in the surrounding context or messaging that supports this inference.
(e)On the 6 October 2021 Todd Hilton advises Kauri Kerr “yeah there’s two four here bro”. Given the preceding communications, this logically refers to methamphetamine. I return to the issue of quantum below.
(f)Shortly after this exchange, Mr Apiata contacts Mr Carlyn Anderson to supply her with four ounces of methamphetamine.
(g)On 10 October 2021, in response to a complaint about methamphetamine he has supplied to her, Mr Apiata tells Carlyn Anderson that he saw it “vapped” and he “scooped out” the methamphetamine as proof it was good quality. This admission of involvement in a manufacture, reinforces the likelihood that the methamphetamine he supplied to her was manufactured by the syndicate and most likely on or about 6 October 2021, there being no other evidence of another manufacture.
[23] I do not consider that a different more innocent explanation for the actions described in the messages is more plausible, including cannabis production, having regard to the fact that Kauri Kerr, Todd Hilton, Jordan Hokai, Levi Tali, Mr Apiata and Mr Cook admitted to conspiring to manufacture methamphetamine and Mr Cook does not deny obtaining and supplying iodine to the group. Tupaea Kerr also admitted to participation in a criminal group engaging in, among other things, the manufacture of methamphetamine. These undisputed facts strongly militate against an innocent explanation for their combined actions that otherwise tend to suggest there was a methamphetamine manufacture in early October 2021. Indeed, an alternative explanation that a cannabis production was “finished” appears highly unlikely given the clear focus in early October on sourcing iodine and then “finishing” a process where iodine was most likely produced. Conversely, as noted, there is no evidence before me of a cannabis purchase or harvest or sale at this time.
[24] Furthermore, the absence of direct proof that all the materials needed to produce the methamphetamine and the fact a clandestine lab was not found, are not sufficient grounds for rejecting what is otherwise a logical inference from the above communications that a methamphetamine production took place. Often clandestine labs are not found, and in this instance the evident confluence between obtaining sufficient iodine for one batch, and the evident completion of their task on 6 October 2021 logically support a finding of methamphetamine production.
[25] Importantly, the summary of communications above show Kauri Kerr is the constant presence and the glue that ties all members of the syndicate together. This included providing leadership and strategic advice, accommodation, and resources, as well as giving specific instructions at key times for tasks to be performed and monitoring their progress. His micromanagement of each step in the process including the delivery of the iodine speaks strongly in favour of a conclusion that whatever they had “two four” of on 6 October 2021was a batch of methamphetamine.
[26] For completeness, I have considered whether Mr Apiata lied about being present at the manufacture or whether he was present at the “vapping” of imported methamphetamine. On the first issue, there is nothing in the surrounding context or on the face of what Mr Apiata said to suggest he was lying simply to deflect criticism
of his product. His response simply appears to be a spontaneous and confident reaction to an allegation of poor product, supported by the further comment that if one part was bad then the whole batch would be bad.
[27] Furthermore, Mr Apiata chose not to give evidence, which is his fundamental right.12 But as explained by the Court of Appeal in Honk Barges, it may be appropriate in some cases to take into account a defendant’s silence when considering whether to accept submissions advanced on behalf of that defendant.13 As the Court said:
[137] It would have been open for the Judge to record that Mr Tauber did not give evidence and that no representative from either of the defendant companies gave evidence. She would have had to warn herself not to reason that, because no evidence was given by any of the defendants, they or any one of them was therefore guilty. Nevertheless, in the circumstances of this case, the absence of defence evidence could have been taken into account by the Judge when she was considering whether to accept all or part of the submissions advanced on behalf of HML, HBL and Mr Tauber.
(footnotes omitted)
[28] The Court also cited with approval the following observation by Glazebrook J in Ithaca (Custodians) Ltd v Perry Corporation:14
[153] … There is no rule [as to what inferences can be drawn from a party’s failure to call material witnesses]. Rather, there is a principle of the law of evidence authorising (but not mandating) a particular form of reasoning. The absence of evidence, including the failure of a party to call a witness, in some circumstances may allow an inference that the missing evidence would not have helped a party’s case. In the case of a missing witness such an inference may arise only when:
(a)the party would be expected to call the witness (and this can be so only when it is within the power of that party to produce the witness);
(b)the evidence of that witness would explain or elucidate a particular matter that is required to be explained or elucidated (including where a defendant has a tactical burden to produce evidence to counter that adduced by the other party); and
(c)the absence of the witness is unexplained.
[154] Where an explanation or elucidation is required to be given, an inference that the evidence would not have helped a party’s case is inevitably an inference that the evidence would have harmed it. The result of such an inference, however, is not to prove the opposite party’s case but to strengthen
12 New Zealand Bill of Rights Act 1990, s 25(d).
13 Honk Barges Ltd v R [2019] NZCA 157.
14 Ithaca (Custodians) Ltd v Perry Corp [2004] 1 NZLR 731.
the weight of evidence of the opposite party or to reduce the weight of evidence of the party who failed to call the witness.
[29] Returning to the present case, the claim is not only that Mr Apiata lied, but that there is another possible explanation for his comments, namely that he was referring to the “vapping” and “scooping out” of imported methamphetamine. Quite how I am to logically choose between these two divergent scenarios is not immediately obvious to me in the absence of evidence from Mr Apiata. But if I am forced to choose, significantly there is no evidence of an importation having occurred about the time of this supply. In these circumstances, I consider it is open to me to take into account Mr Apiata’s failure to provide an explanation for his comment, as tending to support an inference that he in fact was truthful about witnessing the “vapping” and that it related to the manufacture of methamphetamine. In reaching this view, I have not reasoned guilt from the silence alone. Rather it is Mr Apiata’s own inculpatory statement in the broader context of a proven methamphetamine conspiracy, and the absence of explanatory evidence, that weighs in favour of adopting his recorded statement as truthful.
[30] In the result, having regard to the combined weight of the evidence supporting a finding that sufficient iodine was obtained to manufacture methamphetamine and that a cook took place in early October, I am sure the syndicate succeeded in achieving their goal, namely the manufacture of methamphetamine.
Was Mr Apiata involved in the manufacture?
[31] For the reasons just expressed I am driven to the conclusion, beyond reasonable doubt, that Mr Apiata was involved in the manufacture. However, I add that I consider that he had a minor role only in the manufacturer, as he says he was only involved in scooping out the methamphetamine, likely into containers for later distribution.
Whether Mr Cook was involved
[32] I turn then to whether Mr Cook was involved. I am grateful for the helpful submissions of counsel, but I can deal with this aspect succinctly. The Crown case that Mr Cook was involved rests essentially on the following communications:
(a)Levi Tali to Kauri Kerr 4 October 2021 at 17:22
LT: “…Cookie’s doing what you said” (referring to iodine extraction for manufacture).
(b)Jordan Hokai and Kauri Kerr 5 October 2021 at 15:23
JH: “Cooks has gone to do his stuff and he’s left something with me.” (referring to iodine extraction for manufacture).
[33] But, as set out above, on the Crown’s best case the balance of the communication evidence has Jordan Hokai delivering the iodine to Kauri Kerr or Todd Hilton and no other involvement of Mr Cook.
[34] The Crown also places some significance on the fact that Mr Cook was living in a house rented by Mr Kerr that may have been a venue for manufacture or closely associated with it. But there was no forensic evidence linking Mr Cook’s residence to the manufacture of methamphetamine and no surveillance evidence linking Mr Cook to the other most likely locations for the cook in early October.
[35] Given the foregoing, I am not satisfied beyond reasonable doubt that Mr Cook was directly involved in the manufacture of methamphetamine. Indeed, the evidence falls well short of showing that to the requisite standard. At most the Crown have shown that Mr Cook obtained and supplied iodine to the syndicate, which he admits.
Whether the syndicate produced 2.4 kg of methamphetamine
[36] The Crown case for the size of the methamphetamine manufacture turns on the reference to “two four” by Todd Hilton on 6 October 2021. The Crown submits this must be a reference to 2.4 kg because:
(a)2.4 g is too small.
(b)Detective Verry would not expect two four to refer to 240 g.
(c)2.4 kg is consistent with the capacity of the group, which appeared to be dealing in 5 kg amounts of iodine and that amount of iodine converts to about 2 kg of methamphetamine.
(d)The evidence shows that Kauri Kerr was interested in viewing the “two four” and he would not have been interested in viewing a relatively small sum of money ($2400) or a small amount of methamphetamine.
[37] Mr Nabney submits that the reference “two four” is ambiguous. He notes that the quantity of iodine needed produce 2.4 kg of methamphetamine is 5 kg. He submits there is no evidence that quantity of usable iodine was available to Kauri Kerr. He also notes that two unopened 20 litre containers of elemental iodine were found on termination of Operation Freya and one half full 20 litre container. There is no evidence of any other purchases of iodine in the key periods other than those obtained by Mr Cook previously in September. This supports a finding that whatever Mr Cook supplied, it was not likely to have been used. Assuming also that the 10 litres had been used, this would have yielded at most 400 g if there had been a four per cent solution and much less than that if it was a 2.5 per cent solution (which is what he says is more likely).
[38] Ms Ives contends that there is a number of explanations for “two four” including cannabis, money or extracted iodine. It is also consistent with 240 g, being consistent with the purchase of 10 Sistema containers, as Detective Verry accepted was a possibility.
Assessment
[39] As noted by the Court of Appeal in Roulston, when assessing the precise quantity of methamphetamine produced, inferences must be drawn from proven facts, rather than rely on probabilities and estimates.15 Here the proven facts are that Todd Hilton said that they had “two four”. It is not then a matter of ascertaining by reference to probabilities or estimates, but rather from a specified quantum. The only issue is what was meant by “two four”. As I have found that it relates to methamphetamine
15 Roulston v R [2020] NZCA 255 at [21].
production, it cannot be a reference to cannabis or iodine. Furthermore, it cannot sensibly be a reference to 2.4 g. That quantum is simply not reconcilable with the evident effort put in by the syndicate to achieve its goal and then Kauri Kerr’s interest in seeing it. There is also the evidence that suggests that the syndicate was capable of sourcing 5 kg of iodine, which on the evidence mentioned before is usually enough to produce 2 kg of methamphetamine.
[40] Balanced against this, “two four” could be a reference to 240 g or just over eight ounces. An ounce is 28.35 g, and eight ounces is about 227 g. Notably Mr Apiata had four ounces available to supply Carlyn Anderson shortly after the methamphetamine was produced which aligns with a production of that scale. The purchase of the 10 Sistema containers also supports an inference that the production was at this scale rather than a much larger production. However, Mr Apiata also supplied Carlyn Anderson with at least 14 ounces or 400 g over the following four days. There is also evidence that Mr Apiata owed Kauri Kerr $39,000 corresponding to 13 ounces of methamphetamine as at 11 October 2021. This evidence suggests he had immediate access to a much larger quantum of methamphetamine. There is then further evidence that the syndicate were still working hard to obtain more iodine immediately after this manufacture, which suggests that their recent yield was not large.
[41] As is well established, if there are two equally plausible inferences available from the same proven facts, it is impermissible to draw either one. That would be tantamount to a guess. I find myself in that position in this case – “two four” could refer to 2.4 kg or 240 g. I also consider it could also refer to another quantum. While not advanced by any party, logically it could be a reference to 24 ounces – enough to enable the subsequent supply to Ms Anderson. In those circumstances, I cannot be sure that the manufacture produced as much as 2.4 kg of methamphetamine. However, based on the sales that followed shortly after the manufacture, I am satisfied beyond reasonable doubt that it netted at least 400 g being the amount sold to Ms Anderson. I am fortified in this view because Ms Anderson told Mr Apiata that she was “Dry, fucken dry” on 6 October 2021. The logical inference is that neither she or Mr Apiata had access to methamphetamine shortly prior
to that date, and that the immediate subsequent supply over the next four days was sourced from the methamphetamine production on or about 6 October 2021.
Whether Mr Apiata was selling methamphetamine at a profit of about $4000 an ounce, selling 15 ounces a week over 8 weeks.
[42] I turn now to examine the Crown’s case in respect of Mr Apiata’s role and earnings. The following evidence is said to show Mr Apiata’s role and the level of his earnings:
(a)Communications suggesting that Mr Apiata had methamphetamine to sell and was selling methamphetamine at a significant profit:
(i)Patarika Apiata to Kauri Kerr 7 October 2021 at 19:26
PA: “Nah I am getting 7 5” (referring to $7,500 as being the value of the methamphetamine sold per ounce to Carlyn Anderson)
(ii)Kauri Kerr and Patarika Apiata 11 October 2021 at 15:28
PA: “Yeah cos I, what do I owe you 39?”
KK: “Yeah… yeah that’s … 36 and 3” (referring to $39,000 owed by Mr Apiata to Kauri Kerr)
(iii)Patarika Apiata to UKF 13 October 2021 at 09:44
UKF: “…cause I told her that one time you um had 70 thing”
PA: “Yeah, but it’s not, it’s, it’s not that, I got the thing, its just I need it clean. It needs to go into an account …rather than I ain’t got the money” (referring to Mr Apiata having $70,000 and needing to launder $40,000 to purchase a vehicle).
(iv)Patarika Apiata to ‘Enzo’ 3 October 2021 at 14:11
PA: “I just buried about 90 grand”,“…bought me a Dodge Truck”
PA: “…I got one lady that buys them off me, like buys 15 of them off me a week at seven grand each… and I am only paying three grand for them.”
PA: “He said fuck bro just give me a hundred and fifty grand… I said all good then, I’ll have your hundred and fifty grand”
PA: “I said bro you know where my money comes from. He goes yep nah all good and I said ah all good then” (referring to the price to be paid for a property, with knowledge of where the money comes from).
PA: “…the bro (Kauri Kerr) gave me twenty grand and a fucken new hog”.
(b)Communications and conversations with associates where Mr Apiata claims to own high powered firearms, Harley Davidson motorcycles, a Dodge Nitro, a Senator, an Audi, and on different occasions to have
$90,000 or $70,000 or $60,000, and up to $150,000 to buy a house.
(c)Photos from Mr Apiata’s phone showing Mr Apiata in possession of motorcycles, large amounts of cash, various cars, and firearms.
(d)Evidence that Mr Apiata supplied Carlyn Anderson with 14 ounces in four days.
[43] Based on the available information Detective Senior Sergeant Verry calculates the amount of cash and assets Mr Apiata has acquired through his involvement in the conspiracy, as in the order of $215,000 cash earnings (based on the sale of 54 ounces over an eight-week period to Ms Anderson), represented in $150,000 for the property investment, and the $65,000 in vehicles he said he owned. Assuming that Mr Apiata in fact supplied 15 ounces a week as he said he did, he calculates a total potential income earned by him from August to October to be about $480,000. In closing submissions Ms O’Connor accepted that it would be safer to assume sale in the order of 54 ounces.
Defence case
[44] Ms Ives submits it would be wrong to extrapolate earnings based simply on a one-off statement by Mr Apiata that he was selling 15 ounces a week and what she called his “braggadocio” about his financial position. The statement is unqualified in terms of the period over which he was selling at this rate. Detective Verry’s
assumption that it extended over an eight-week period was simply speculative, there being no other evidence to corroborate this level of activity over such a period. As to the various statements made by him about cash, a house purchase, motorbikes, and cars, including an Audi, a Senator and a Dodge, Ms Ives emphasises that there is no direct evidence corroborating these claims. He was only found with $5,595 in cash. He had no bikes, no house and was only ever seen regularly in the Dodge.
Assessment
[45] It is apt to recall that the Crown must prove the level of Mr Apiata’s criminal earnings beyond reasonable doubt. It is not enough that such earnings were likely or even very likely. As mentioned above, findings about specific quanta are not amenable to inferential reasoning based on probabilities and estimates. They should be based on proven facts.16
[46] In this regard, I consider it available to me to infer from the available evidence that Mr Apiata had been selling 15 ounces a week to Carlyn Anderson, at about $7,000 an ounce, and each ounce cost him about $3,000 (leaving around $4,000 profit per ounce). This conclusion is consistent with the following proven facts:
(a)Mr Apiata told a friend ‘Enzo’ on 3 October 2021 that he had been selling about 15 ounces a week at about $7,000 an ounce.
(b)Mr Apiata supplied 14 ounces of methamphetamine to Carlyn Anderson in the period 6 October to 12 October 2021.
(c)Mr Apiata told Kauri Kerr he is selling methamphetamine to Carlyn Anderson at about $7,000 to $7,500 an ounce.
(d)Mr Apiata owed $39,000 to Kauri Kerr in respect of 13 ounces of methamphetamine as of 10 October 2021, which broadly corresponds to the October sales to Carlyn Anderson.
16 Above n 15.
[47] However, I am not satisfied the statements made by Mr Apiata about his cash, cars, and bikes support an inference, let alone a conclusive finding, that Mr Apiata traded with Ms Anderson at this level for eight weeks. In reality there was no house, no Audi, no bikes and no Senator found in Mr Apiata’s possession or control, and only
$5,595 was found on Mr Apiata at the conclusion of Operation Freya. It is also noteworthy that the Commissioner of Police is pursuing Mr Kauri Kerr for the Senator. The logical inference to be drawn from all of this is that it was never Mr Apiata’s. It would therefore be wrong to base any form of assessment of trading levels and profitability based on this material.
[48] What then was Mr Apiata’s level of trading and profit? At a minimum he reaped in the order of $56,000 from his October supply. I am also sure that he would have been engaging in commercial level dealing through September as is clear he had an established relationship with Ms Anderson prior to October. This evident from his statement to Enzo on 3 October 2021, and is implicit from his conversations with Carlyn Anderson which suggest prior dealing and Kauri Kerr about his arrangement with her including the following statements:
(i)Patarika Apiata to Carlyn Anderson 7 October 2021 at 17:47
CA: “Yeah, where are you? Yep.”
PA: “Um remember that time when I, and you parked underneath the light?”
…
PA: “Are you gonna be in the Holden?” CA: “No I’ll be in the Merc”.
(ii)Patarika Apiata to Kauri Kerr 7 October 2021 at 19:26
KK: “I hope you are still saying 8 to her (Ms Anderson), you are aye?”
PA: “Nah I’m getting 7 5 … was a pack a day”, “… she kind a got me, fucken … my fucken balls in her hands… and with her there’s no dramas…”
(iii)Patarika Apiata to Carlyn Anderson 8 October 2021 at 17:05
PA: “Okay remember that, remember that stop we had just in Kaikohe by the big tree (pause) my bro?”
[49] Overall, therefore, while I cannot make any more definitive assessment of the quantum of Mr Apiata’s trading other than to find he made at least $56,000 from the October supply, I am sure he was involved in other commercial level dealing for an extended period, including September and October 2021. I am also satisfied that Mr Apiata operated with a reasonable level of independence in terms of the supply side of the operation. My present thinking is that he was not as he said to a friend “2 ruts from the top”. Rather he operated at an intermediate level of the operation. However, I prefer to hear from counsel as to Mr Apiata’s role in light of this decision and the categorisations provided in Zhang before reaching a final view.17
[50] For completeness I address an issue that occupied sometime in the hearing, namely the significance, if any, of Mr Apiata’s silence. At one point Ms Ives contended that Mr Apiata was lying about the level of his accumulated wealth but signalled that Mr Apiata would not be giving evidence about this, or about the scale and duration of his supply. It transpired I did not need to hear from Mr Apiata about his accumulated wealth, as there was not a sufficient evidential basis to support a finding about his accumulated wealth. Indeed, his statements were contrary to the weight of the evidence. But insofar as Ms Ives was contending that Mr Apiata’s statement about weekly sales was a lie, then as explained in Honk Barges, given the absence of evidence showing him to be lying about this, I treated that contention as unproven. As I have already explained, Mr Apiata’s statement about this was consistent with other evidence, including his actual sales performance in October 2021.
Result
[51]I am satisfied beyond reasonable doubt that:
(a)The syndicate manufactured methamphetamine in October 2021;
(b)Mr Apiata participated in the manufacture; and
17 Zhang v R [2019] NZCA 507; [2019] 3 NZLR 648 at [126].
(c)The manufactured produced at least 400 grams of methamphetamine.
[52] I am not satisfied beyond reasonable doubt that Mr Cook participated in the manufacture of methamphetamine.
[53]I am satisfied beyond reasonable doubt that:
(a)Mr Apiata supplied methamphetamine to Ms Anderson in September and October 2021.
(b)Mr Apiata profited from the supply of methamphetamine at least in the order of $56,000.
[54]I reserve my position on Mr Apiata’s role to sentencing – see [49].
Whata J
5
0