R v Aroh
[2008] NZCA 457
•5 November 2008
IN THE COURT OF APPEAL OF NEW ZEALAND
CA106/07
CA113/07
[2008] NZCA 457THE QUEEN
v
FRANK ONYEBU AROH
CAROLINE RANGIATA AROHHearing:25 September 2008
Court:O'Regan, Chisholm and Gendall JJ
Counsel:R M Mansfield and H Lawry for Frank Aroh
P H H Tomlinson for Caroline Aroh
J C Down for Crown
Judgment:5 November 2008 at 11.30 am
JUDGMENT OF THE COURT
The appeals of both appellants against conviction and sentence are dismissed.
REASONS OF THE COURT
(Given by Chisholm J)
Table of Contents
Para No
Introduction [1]
Background [5]
Mr Aroh’s appeal against conviction [20]
Breach of the Bill of Rights Act [21]
Failure to exclude hearsay email [31]
Evidence of Mr Njoku outside his area of expertise [34]
Fabricated evidence [37]
Inadequate directions about mental element of importing/ exporting [49]
Inadequate directions about similar fact evidence [53]
Prejudicial comments [56]
Undue pressure upon jury [60]
Summary [69]
Mrs Aroh’s appeal against conviction [70]
Failure to sever the trial [71]
Fabrication of evidence [73]
Error in Judge’s summing-up [77]
Summary [82]
Sentence appeals [83]
Mr Aroh [88]
Mrs Aroh [98]
Result [106]Introduction
[1] Following a five and a half week trial in the High Court at Auckland before Frater J and a jury, the appellant Frank Aroh was found guilty on five counts of importing cocaine, one of importing heroin, and one of attempting to export heroin. He was acquitted on a count of exporting heroin. Both appellants were found guilty on a joint count of exporting an unspecified Class A controlled drug. Frater J sentenced Mr Aroh to 17 years imprisonment with a minimum non-parole period of eight and a half years and Mrs Aroh to nine years imprisonment.
[2] Mr Aroh appeals against conviction and sentence. His conviction appeal alleges a miscarriage of justice by virtue of eight matters which can be broadly summarised as: a breach of the New Zealand Bill of Rights Act 1990; issues arising from the Crown’s evidence; errors in the Judge’s summing-up; and the lateness of the hour at which the jury returned its verdicts (1.27am). The appeal against sentence alleges that the sentence is manifestly excessive.
[3] Mrs Aroh also appeals against conviction and sentence. Her appeal against conviction relies on four grounds which she claims gave rise to a miscarriage of justice: failure to sever the count alleging joint offending by her and her husband from the remaining counts alleging offending by her husband alone; fabrication of Crown evidence; an error in the Judge’s summing-up; and the late hour to which the jury deliberated. Like her husband, Mrs Aroh alleges that her sentence is manifestly excessive.
[4] Since these appeals were lodged there has been relatively slow progress towards a hearing. To a large extent this has arisen because of changes in the appellants’ legal representation and the fact that at times they have represented themselves. It was necessary for more than one fixture before this Court to be abandoned.
Background
[5] After being born in Zimbabwe and raised in Nigeria, Mr Aroh arrived in Christchurch from Singapore on 27 October 2002. He then travelled to Auckland where he initially stayed at Central City Backpackers hostel, 26 Lorne Street, Auckland. He also attended the nearby Methodist Church, Queen Street, Auckland. Both these addresses assumed considerable significance in the prosecution that was to follow.
[6] Mrs Aroh is a New Zealand citizen. She met Mr Aroh in August 2003 and within a short time he moved to 33 Linton Road, Auckland, where she was living. However, he continued to use the backpacker’s address as his mailing address. Mr and Mrs Aroh were married on January 2004. They have one child.
[7] It was the Crown’s case that Mr Aroh imported cocaine into New Zealand on 12 February 2004 and 14 April 2004, and heroin on 17 August 2004. The combined street value of the drugs involved was alleged to be around $4.7 million. According to the Crown New Zealand was being used as a staging post for drugs imported from South America and Asia to be exported to Australia. On the Crown’s case Mrs Aroh was involved in one of the exports to Australia. We now address these allegations in greater detail.
[8] On 12 February 2004 New Zealand Customs intercepted three packages containing 17 children’s books that had arrived from Brazil. Two of the packages were addressed to “Franklin Aaron” at the Methodist Church. The third package was addressed to “Caroline Rangata” at 26 Lorne Street. Cocaine was concealed inside the front and back covers of each book. A total of 3.274 kg of cocaine was seized by Customs. This importation gave rise to counts 1 – 3, which alleged that Mr Aroh imported cocaine on or about 12 February 2004 (each count related to one package).
[9] A few days after these packages were intercepted Customs and the Police attempted a controlled delivery of the packages to the consignment addresses. However, the packages were not claimed. A telephone conversation later intercepted by the Police was relied on by the Crown to support its proposition that this was because Mr Aroh had become suspicious.
[10] On the Crown’s case other packages reached New Zealand without detection by Customs. The Crown contended that on 27 March 2004 one of those packages was sent by Mr Aroh from Auckland to Brisbane where it was picked up by Mrs Aroh for onward transmission within Australia. The package was addressed to “Carol Rangata” (which the Crown alleged is an abbreviation of Mrs Aroh’s name) at the Brisbane Homestead Hostel, Brisbane. Mrs Aroh stayed at that hostel from 28 to 30 March 2004. The sender of the package was “Blessed Jacob” which the Crown contended was a name used by Mr Aroh. Emails indicated that Mrs Aroh retrieved the package and then travelled to Sydney before returning to New Zealand on 2 April 2004. Shortly after Mrs Aroh returned to New Zealand a deposit of $2,300 Australian dollars was made into Mr Aroh’s bank account. Count 4 jointly charges Mr and Mrs Aroh with exporting a Class A controlled drug on or about 27 March 2004.
[11] On 14 April 2004 Customs intercepted two letters from Brazil addressed to “Blessed Jacob” at 33 Linton Road, Auckland. These envelopes contained greeting cards. Within the greeting cards Customs located plastic bags containing cocaine weighing 34.7 grams. This second importation gave rise to counts 5 and 6 which alleged that Mr Aroh imported cocaine on or about 14 April 2004 (each count related to one letter).
[12] Following this the Police sought an interception warrant which was granted on 28 June 2004. Thereafter conversations involving Mr Aroh’s landline and cellphone were monitored 24 hours a day. An interpreter was used to translate the conversations that were in Igbo, a Nigerian language or dialect. Thus by the time of the third importation the authorities had detailed information about the courier number, address and the time of arrival that could be expected.
[13] With the benefit of this information Customs intercepted a package from Thailand containing a book on 17 August 2004. The package was addressed to “Frank O” at 26 Lorne Street (Frank Aroh’s middle name is Onyebu). Heroin weighing 139.6 grams was hidden in the book. This third importation gave rise to count 7 which alleged that Mr Aroh had imported heroin on or about 17 August 2004.
[14] Police and Customs then arranged a controlled delivery of the package to the backpackers hostel at 26 Lorne Street and a Police and Customs surveillance operation was mounted. On 20 August 2004 Mr Aroh was seen to visit the premises and he was followed after he left the backpackers hostel. He was seen leaving a public toilet (where the Crown alleged that the book was repackaged for export to Australia) and going to a post office where he took all the necessary steps for the package to be sent to Australia. Counts 8 and 9 arose from these events. Count 8 alleged that on or about 20 August 2004 Mr Aroh exported a Class A controlled drug and, in the alternative, count 9 alleged an attempt to do so.
[15] On 30 August 2004 the Police executed a search warrant at an Auckland address then occupied by Mr and Mrs Aroh. A computer, cellphone, passports and other documentation were seized.
[16] Mr Aroh was interviewed by the Police, initially on video and subsequently by way of a statement taken down in writing in the presence of his lawyer. He confirmed that the relevant landline and cellphone numbers were his and that he had stayed at the backpackers hostel in Lorne Street and also at 33 Linton Road. He also acknowledged that he still had mail sent to the backpackers after he had left that establishment and that he attended the Methodist church in Queen Street. But he denied the offending.
[17] Mrs Aroh was also interviewed on video by the Police. While she acknowledged making a trip to Brisbane in March 2004, she denied being involved in the export of drugs.
[18] Because Mr and Mrs Aroh were representing themselves and Mrs Aroh was not ready to proceed to trial when Mr Aroh was ready to do so, Simon France J ordered separate trials. However, a few days into Mr Aroh’s trial the Judge found it necessary to abort the trial so that Mr Aroh could obtain legal representation. The subsequent trial before Frater J (the trial giving rise to this appeal) ran from 16 October 2006 to 22 November 2006. At that trial the charges against both appellants were heard together and they were each represented by counsel. Mr Aroh gave evidence. Mrs Aroh elected not to do so.
[19] We will now consider Mr Aroh’s appeal against conviction, following which we will consider Mrs Aroh’s appeal against conviction. Then we will consider the sentence appeals.
Mr Aroh’s appeal against conviction
[20] The eight grounds of appeal against conviction relied on by Mr Aroh (but not necessarily in the order that they were argued) are:
(a)Breach of the Bill of Rights Act;
(b)Failure to exclude a hearsay email;
(c)Allowing an interpreter, Eric Njoku, to give opinion evidence outside his area of expertise;
(d)The appellant was the victim of fabricated Crown evidence;
(e)Inadequate directions were given by the Judge on the mental element of importing/exporting;
(f)Inadequate directions were given by the Judge about the use that could be made of similar fact evidence;
(g)Prejudicial comments were made by the Judge during the course of her summing-up;
(h)Undue pressure was exerted upon the jury to reach verdicts by virtue of the hour to which they deliberated.
We now consider each of these grounds of appeal.
Breach of the Bill of Rights Act
[21] Early on 30 August 2004 Police and Customs officers went to the address occupied by Mr and Mrs Aroh. After Mr Aroh had been cautioned and advised of his rights under the Bill of Rights Act he was asked by Sergeant Rowbottom to accompany him to his office (the offices of the Auckland Metropolitan Drug Squad) so that they could discuss “drug related matters” which the sergeant had already communicated to Mr Aroh by reference to the search warrant. Mr Aroh agreed.
[22] At the sergeant’s office Mr Aroh agreed to a video interview. After the interview had been in progress for over two hours Mr Aroh asked to speak to a lawyer, and the interview was suspended. There was no further attempt to engage Mr Aroh in conversation until after he had spoken to the lawyer. Having spoken to the lawyer Mr Aroh agreed to make a statement which was taken down in writing and signed by Mr Aroh and his lawyer.
[23] It is not disputed that one of the reasons that Sergeant Rowbottom wanted to speak with Mr Aroh was to listen to his voice for later comparison with the intercepted telephone conversations. Counsel for Mr Aroh, Mr Lawry, argued that because Mr Aroh had not been informed about this purpose he was not in a position to make an informed decision about whether he wished to exercise any of his rights. Under those circumstances, submitted Mr Lawry, the sergeant’s voice identification evidence was unfairly obtained and should have been excluded (as well as the video interview). He likened the appellant’s situation to that of a suspect being interviewed about an assault without being told that the victim had died. While Mr Lawry acknowledged that the argument he was presenting had been rejected by Williams J in R v Allison & Ors HC AK T.002481 13 February 2003, he claimed that some support for it, at least in principle, could be found in R v Harder (2004) 21 CRNZ 255 (CA).
[24] This issue was not raised at trial.
[25] We do not consider that the decision of this Court in Harder can avail the appellant. In that case the voice identification evidence of a detective was challenged on the very specific ground that it had been gathered after Mr Harder had indicated that he wished to speak to his lawyer (his father). It was held that (at [31]):
… in circumstances where the police had briefed Detective Emerson to listen to Mr Harder’s voice for the purposes of voice identification, she should not have been asking any questions, on any topic, pending Mr Harder’s having access to his father’s legal advice….
That situation did not arise in this case. The unchallenged evidence of Sergeant Rowbottom was that once Mr Aroh indicated that he wanted to speak to his lawyer there was no further questioning until Mr Aroh, having spoken to his lawyer, agreed to make a further statement. Nor do we consider that the Harder decision gives rise to any wider principle that might have application in this case.
[26] As Mr Lawry acknowledged, the only authority directly in point is against him. In response to the same argument that Mr Lawry put to us, Williams J said in Allison (at [170]:
… the New Zealand Bill of Rights Act 1990 requires police officers to advise detainees of the reasons for their detention. The reason for Mr Marsh’s detention was his arrest on the driving charge. No complaint was made of his being briefly detained after being processed on that charge until the Harlech House party arrived. No case was cited to support Mr Kovacevich’s submission that interviewees are legally required to be advised of the purpose of the interview as part of the giving of advice under the New Zealand Bill of Rights Act 1990 and the Court is not prepared to imply such an obligation. It is a reason for interview not a reason for detention. It would be an impractical conclusion since many interviews are conducted for a multitude of purposes, as was the case in this instance. It would also be impractical as requiring full knowledge in each case on the part of the interviewing officer. It would be unhelpful to interviewees since it would be easy to circumvent: advice that the interview was “for all matters in relation to” particular offences may well satisfy the suggested requirement but give an interviewee no substantially greater protection. And finally, there is no hint in the New Zealand Bill of Rights Act 1990 or in the cases decided in the years since the Act has been in force that an obligation exists such as that for which Mr Kovacevich contends.
In that case the suspect was not told before he was interviewed by the Police that one of the purposes of the interview was voice identification. However, during the interview he was told that there had been electronic surveillance and he was given an opportunity (which he declined) to listen to the tapes.
[27] According to Sergeant Rowbottom he took particular care at the appellant’s home to make sure that Mr Aroh understood his rights by having Mr Aroh explain them back to him. Then he told Mr Aroh that he wanted to speak to him about the drug related matters that were listed in the search warrant and during the trip to his office. He said to Mr Aroh:
Frank we have been watching you for a very long time since earlier this year. I know a lot of things about you so I want you to think about what I have just said – when I speak to you I want you to be truthful because I will know if you are not.
Mr Aroh was shown, and signed, a notebook entry to that effect. Once they arrived at the sergeant’s office Mr Aroh agreed to a video interview and at the beginning of the interview he was again cautioned and given his rights under the Bill of Rights Act.
[28] The transcript of the video interview indicates that there was lengthy questioning of Mr Aroh about background matters including his history before coming to New Zealand and his movements and employment history after coming here. He was also asked about his cellphone and email addresses. Ultimately he was asked about his involvement with the package from Thailand. Sergeant Rowbottom told Mr Aroh that he had been seen picking the package up and that he had been followed. He was also told that the Police had been listening to his telephone and to “everything that you’ve been talking about”. Soon after being asked further questions about the package from Thailand Mr Aroh said he wished he had a lawyer. He was then given an opportunity to contact one, and did so.
[29] Given those events we do not accept that Mr Aroh was treated unfairly or that there was any breach of the Bill of Rights Act. From the outset Mr Aroh was aware that he was facing serious allegations concerning narcotics and he could not have been under any illusion about the seriousness of his situation. He was cautioned and given his rights in accordance with the Bill of Rights Act on two occasions. Before the video interview Mr Aroh was told that he had been under Police surveillance and that they knew a lot of things about him. The transcript of the video interview indicates that the primary purpose of the interview was to elicit substantive information, with voice identification being nothing more than a subsidiary purpose. Finally, during the interview he was told that the Police had been listening to his telephones and to everything that he had been talking about.
[30] In any event, neither the voice identification evidence of Sergeant Rowbottom nor the video interview were pivotal to the Crown’s case concerning the intercepted conversations. While one of the transcribers, Detective Hardy, acknowledged that he had listened to parts of Mr Aroh’s video interview for voice identification purposes, he also said that “after a certain period of time you become very familiar with the likes of Frank’s voice” from the intercepted conversations themselves. There is no indication that the other transcriber, Mr Njoku, listened to the video interview at all. Moreover, Mr Aroh gave lengthy evidence at trial. Thus the transcribers and the jury were well able to determine whether Mr Aroh was participating in the intercepted conversations without having to resort to Sergeant Rowbottom’s evidence or the video interview.
Failure to exclude hearsay email
[31] Included in the material extracted from Mr Aroh’s computer was an email dated 25 January 2004 from a Steve Dumobi to Mr Aroh:
frank, what’s up, and how do you do with your wife hope all is well.
i had expected you to have called me all these while for you to update me with informations between you and alo. he called to inform me that he has given you some market and that it was all successful. he is now waiting for your wife to remit the money to him.
frank, please do not disappoint me towards alo. be upright with him and you will be a successful man in this business.
i need you to call me and lets talk because you have to be giving me my own percentage as agreed upon.
i will wait for your call and your email so that i will give you the western union cordinates where you will pay in the cut for me.
till then have a great day.
steve
It is common ground that there was no evidence that this email had been acknowledged in any way by Mr Aroh, and he denied knowledge of it.
[32] Given the patently hearsay nature of the email, Mr Lawry’s argument that it was inadmissible was not seriously challenged by the Crown. Mr Lawry noted that the email did not relate to any specific count and claimed that the interpretation placed on it was highly prejudicial to Mr Aroh, especially by virtue of Mr Njoku’s evidence that the word “market” was a coded reference to a narcotics transaction. To make matters worse, submitted Mr Lawry, the Judge had mentioned the email during the course of her summing up without cautioning the jury about the danger of placing any weight on it.
[33] Again this evidence was not challenged at trial. Apparently the fact that the email was hearsay escaped the attention of counsel and the Judge. Nevertheless we agree with counsel for the Crown, Mr Down, that once this email is placed in the context of the extensive evidence of intercepted conversations and emails before the jury, there is not the slightest cause for concern that admission of the email gave rise to a miscarriage of justice. Significantly Mr Njoku’s evidence about the code meaning of the word “market” related to the intercepted telephone conversations, not this email.
Evidence of Mr Njoku outside his area of expertise
[34] Eric Njoku, who had lived in Nigeria before moving to Australia, translated into English the intercepted conversations that had been spoken in Igbo. Igbo is Mr Njoku’s first language. Before moving to Australia he gained a Diploma of Education in Nigeria and taught at both primary and secondary school levels in that country. After moving to Australia he completed a Bachelor of Applied Sciences degree and he lectures in that subject at Victoria University, Melbourne. Mr Njoku also provides interpretation and translation services from Igbo to English, and vice versa, through an agency.
[35] This ground of appeal arises from Mr Njoku’s evidence that the word “market” is a code for a narcotics transaction, “pythons” is a reference to authorities such as Police, Customs or the military, and “machine” refers to a computer. His evidence was that he had previously encountered those words when transcribing intercepted conversations for the Australian Federal Police. Although he was cross-examined about his interpretation, there was no challenge at trial to his expertise to give this evidence about those words.
[36] We do not accept Mr Lawry’s argument that Mr Njoku was not qualified to give evidence about the code meaning of those words. Since 2000 Mr Njoku has interpreted Igbo to English, and vice versa, and has assisted the Australian Federal Police in investigations involving the importation of narcotics into Australia. His evidence was that during the course of those investigations he has listened to “hundreds” of intercepted telephone calls on that topic and that he has given evidence in Australia about his translations and interpretations. He said that “quite often” those translations and interpretations involved coded language.
Fabricated evidence
[37] Although numerous allegations were advanced by Mr Aroh in submissions that he prepared when he was representing himself, we confine our consideration to the matters that were actually argued before us.
[38] It is alleged that the case against Mr Aroh contains evidence that cannot be explained in any way other than that “a Customs officer has deliberately fabricated a trail of evidence against him”. As argued before us this allegation relates primarily to events concerning the package that arrived from Thailand on 17 August 2004. We infer that the allegation is levelled at Stuart Williamson, a former senior drug investigator with the Customs Service.
[39] The evidence for the Crown was that on 17 August 2004 Customs intercepted a package which was consigned through FedEx (Federal Express) to “Frank O” at 26 Lorne Street, Auckland (the address of the backpackers hostel). Heroin was hidden in the back of the book contained in the package. Part of the heroin was extracted and replaced with a powder that had a similar appearance. Although it later transpired that heroin was also hidden at the front of the book, this does not appear to have been located at the time by Customs.
[40] Customs then made a controlled delivery of the package to the backpackers hostel using a Customs officer dressed in a FedEx uniform. The owner manager of the backpackers hostel had received a prior briefing from the Police. The package was receipted by a member of the hostel staff. When the package had not been uplifted by the evening of 19 August 2004 a detective covertly uplifted the package from the owner/manager. That night there was a further inspection of the package, the heroin hidden in the front of the book was located, and most of it was replaced by a powder with a similar appearance. The package was then covertly returned to the hostel.
[41] During the afternoon of 20 August 2004 a Customs officer, who was part of a team undertaking a surveillance operation, saw Mr Aroh go to the backpackers hostel. Mr Aroh was carrying a small backpack. The officer saw him uplift a package at the hostel and from that time the appellant was under observation by various officers who were in radio contact with each other. Photographs of Mr Aroh entering and leaving the backpackers hostel were before the jury. After the appellant was seen to leave a toilet a Police officer found a FedEx envelope, which corresponded with the envelope that had been used for the controlled delivery, in the toilet.
[42] Later the appellant was seen to enter a Post Shop in the Downtown Plaza shopping centre in Auckland. The manager of the Post Shop had been previously alerted by Mr Williamson that a “dark skinned” person would be entering the Post Shop. Within a short time Mr Aroh entered the Post Shop and the evidence was that he completed a consignment note for the package to be sent to Australia. These events were recorded by a Post Shop surveillance camera and photographs from that footage were before the jury. When the package was recovered by the Police it was found to contain the same book that had been intercepted earlier. The name of the consignor was “Blessed Jacob”. A “site safe” card in the name of “Blessed Jacob” was also found on the counter.
[43] When interviewed on video Mr Aroh initially denied that he had received anything from Thailand. Later he said he had been “used” by “Mike” who had sent him something to send to his girlfriend in Australia. Mike featured in many of the intercepted telephone conversations. Mr Aroh said that he had picked up the parcel because Mike had been “putting pressure” on him. He acknowledged that he had gone into the toilet, opened the package, looked at the magazine, and then gone to the Post Shop. When asked what he had done with the packaging he said “I just left it in there”, and confirmed that by that he meant that he had left it in the toilet. He also confirmed that he had posted the package to “Roslyn Andrew” in Sydney. That corresponds with the consignment note later recovered by the Police.
[44] In the statement made in the presence of his solicitor after the video interview was abandoned, Mr Aroh said that he had written the name “Blessed Jacob” as the sender of the package to Australia. He said that he had been told by Mike to use a fictitious name. Mr Aroh also said that a card used at the Post Shop as identification “is not mine but I used it”. This appears to be a reference to the “site safe” card in the name of “Blessed Jacob”.
[45] At trial Mr Aroh gave evidence that on 20 August he went into the backpackers and collected the magazine that had been sent by Mike. and put it in his bag. He then went “downtown” to post it and on the way went upstairs to the toilet where he opened the magazine for the first time. He had a look at the magazine, put it in his bag, and left the Post Shop. He did not leave anything behind in the toilet. Then he went to the Post Shop and put the magazine in an international express bag and gave it to the teller. Under cross-examination he initially denied that he had left anything in the toilet but ultimately accepted that he had left the “envelope” somewhere in the toilet. However, when the packaging that had been recovered from the toilet was shown to him he denied that he collected it from the backpackers hostel.
[46] As we understand it, the proposition that a false trail of evidence had been fabricated against Mr Aroh relies on the following propositions:
· There were in fact two packages delivered to the backpackers hostel, one through FedEx and another through DHL. Rather than collecting the FedEx package, Mr Aroh in fact collected the DHL package. This proposition arises from a statement to the police by Graeme Ingram, owner/manager of the backpackers hostel, to the effect that the package was delivered to the hostel by DHL Couriers. We are satisfied, however, that for a number of reasons there is nothing in this point. First, at trial Mr Ingram said that while he was not able to say with 100% certainty which courier company delivered the package “FedEx comes to mind”. Under cross-examination he confirmed that he was not sure which company made the delivery. Second, the scenario argued before us does not appear to have been raised, or at least raised directly, at trial. Third, it is incompatible with the evidence that the FedEx packaging was recovered from the toilet and Mr Aroh’s acknowledgement that he had left it there. Fourth, the fact that the same book was in both the intercepted package and the consignment to Australia confirms that Mr Aroh’s proposition is completely untenable. Finally, taken as a whole the Crown’s evidence about Mr Aroh’s involvement in the episode concerning the package from Thailand was overwhelming.
· The documentation tracking the FedEx package is inconsistent with the acknowledgement of receipt which was signed by a person who was not known at the backpackers hostel. This contention is misconceived. Roosje Hart an employee at the hostel, gave evidence about receiving the package and signing for it which was admitted by consent. Her evidence was corroborated by the owner/manager of the hostel who said that he gave instructions to Roosje Hart to sign for the package when it arrived.
· A few minutes before the appellant entered the Post Shop, Mr Williamson informed the Post Shop manager that the appellant would be going into his shop. Given that there were another three Post Shops in the vicinity, the customs officer must have been orchestrating false evidence. Mr Williamson was extensively cross-examined about this issue and it was squarely before the jury. The officer’s explanation was that Mr Aroh’s movements were being monitored by the surveillance team who were in radio contact and this enabled him to warn the Post Shop manager about the possibility that a dark skinned man would be going into his shop. We do not find anything untoward about that explanation. As the jury obviously found, there was nothing sinister in Mr Williamson’s prior warning.
· Whereas the package that arrived into New Zealand from Thailand weighed 700 grams, the consignment to Australia weighed 770 grams. Again this issue was squarely before the jury by virtue of the cross-examination of Mr Williamson. The jury was entitled to conclude that the variation in weight was explicable on the basis of the new packaging or a variation in the scales that were used at the two locations. We also note that there was evidence before the jury that the book alone had been weighed at 743.2 grams when it was intercepted on arrival at Auckland.
· Absence of the appellant’s fingerprints on packaging that was recovered from the toilet. This issue was also squarely before the jury. In any event, as already discussed, the appellant admitted in his video interview and later under cross-examination that he had opened the package and left the packaging there.
· Refusal of the prosecution to make all the Post Shop surveillance tapes available to the defence. As we understand it, Mr Aroh wanted the full surveillance tape to be played to the jury in the belief that it would show a second person had posted the FedEx package sometime after he had been to the Post Shop and that the “site safe” card had been deliberately left on the counter by someone other than himself. In other words, he had been set up. However, we are satisfied that these allegations are without foundation. During cross-examination of Heather Sangster, the manager of the Post Shop, trial counsel for Mr Aroh asked for the surveillance tapes to be played and replayed on numerous occasions. At no point does the record show a complaint by defence counsel about missing tapes or any allegation that tapes had been unfairly withheld by the Crown. Apart from that, the proposition now advanced on behalf of Mr Aroh is directly contradicted by his admission that he posted the package to Roslyn Andrew in Sydney.
[47] Finally on this topic, we should mention an email that both Mr and Mrs Aroh claim was fabricated. According to the Crown Mrs Aroh sent an email to Mr Aroh from Brisbane on 28 March 2004 after she had arrived there to collect the parcel that had been sent from Auckland. The defence claimed that it could not have been sent by Mrs Aroh because at the time the email is recorded as having been sent she had not even left New Zealand, this having been confirmed by her flight details. This discrepancy was explained by Bruce Ellis, a forensic investigator with Customs, on the basis that the time shown on the email was Greenwich Mean Time. Thus this issue was also before the jury and there is no basis for us to intervene.
[48] We are therefore satisfied that the fabrication allegations are without merit and that this ground of appeal cannot succeed.
Inadequate directions about mental element of importing/exporting
[49] Justice Frater provided the jury with a memorandum which explained various matters, including the elements of the charges. With reference to the importation charges the memorandum stated, first, that there had to be an importation into New Zealand and, second, that the substance imported had to be a Class A controlled drug. There is no issue about that part of the direction. The memorandum then described the two remaining elements:
(iii)That the accused was a party to the importation in that he either did the importing himself, or arranged for it to be done, or otherwise intentionally participated in the importation.
(iv)That the accused knew that the substance being imported was a Class A controlled drug, or was wilfully blind to that fact. (Emphasis added.)
There was a similar direction in relation to the exporting charges. Mr Lawry contended that the underlined portions of the direction were inadequate and that this was of considerable importance because Mr Aroh’s knowledge, or lack of it, was the central issue at trial.
[50] In relation to element (iii) Mr Lawry argued that the italicised words might have left the jury with the impression that Mr Aroh could be guilty of importing or exporting even if he was not a principal or party to the import or export in terms of s 66 of the Crimes Act 1961. We do not accept that argument. The memorandum also contained an explanation of s 66(1) and the jury would have been well aware that if Mr Aroh intentionally participated in an import or export (and the other elements were also proved) he would be guilty of the offence either as a principal offender or as a party.
[51] On the other hand, we agree with Mr Lawry that there are problems with the bald reference to wilful blindness in element (iv). In R v Martin [2007] NZCA 386 this Court explained at [10] that wilful blindness applies if there is a deliberate failure to inquire when the accused knows that there is good reason for that inquiry. The direction in the memorandum, which was not amplified by the Judge during the course of her summing up, did not provide the jury with sufficient information for them to have understood the concept of wilful blindness.
[52] Having said that, we do not consider that the inadequate direction has actually given rise to a miscarriage of justice in this case. There are two reasons. First, at no stage was wilful blindness advanced as part of the Crown case. Its case was that Mr Aroh had actual knowledge of the imports and exports of drugs with which he was charged. This would have been clear to the jury and we do not believe that the reference to wilful blindness would have distracted them from that issue. Second, the evidence of actual knowledge on the part of Mr Aroh was overwhelming, which reinforces our view that the unnecessary reference to wilful blindness does not call the verdicts into question.
Inadequate directions about similar fact evidence
[53] Her Honour gave the jury a conventional similar fact direction (the Evidence Act 2006 had not come into force). She listed six alleged similarities that were relied on by the Crown to support its contention that Mr Aroh was involved in all the offending: use of name “Blessed Jacob”; concealment of drugs in books; number of books sent in a particular package; use of a variant of the name of Mr Aroh and his wife as consignee or addressee; use of addresses connected to Mr Aroh; and weight of the various parcels. The Judge warned the jury that if they were not satisfied that there was sufficient similarity between the offences to provide the necessary degree of mutual support, they had to guard against thinking that he had a tendency to act badly and must therefore be guilty.
[54] Mr Lawry argued that to the extent that there were any similarities (which was denied) they could only relate to the imports, not the exports. That submission was developed with reference to each of the features relied on by the Crown. Mr Lawry claimed that once the evidence concerning the alleged similarities was analysed, it was apparent that most, if not all, the alleged similarities were non-existent.
[55] The evidence said to be similar fact evidence was simply what is known as relationship evidence or sequential evidence, being part of the res gestae presented to enable the jury to draw inferences from features that were part of the overall plan. We are satisfied that the direction to the jury was orthodox and that the jury were well able to decided for themselves whether the alleged similarities were of sufficient strength to justify the conclusion that the same person was responsible for more than one of the offences. Importantly, the jury was carefully instructed about how they were to go about drawing inferences and were told on more than one occasion that they had to consider each charge, and the evidence relating to it, on an individual basis.
Prejudicial comments
[56] During the course of evidence the jury became aware that there had been an earlier trial. In the course of her summing-up Frater J said to the jury (at [117]):
… You will recall that you heard that there had been an earlier trial which was aborted because Mr Aroh sought legal representation – so the trial didn’t finish. That’s in the past; we’re in the present; we’re concerned with what – we, in particular you, are concerned with the evidence that was adduced in this trial. So don’t concern yourselves at all with what happened or may have happened in the previous trial. You have to decide the case on the basis of the evidence given in this trial.
For Mr Aroh it was alleged that the explanation about why there was a new trial was unnecessary and prejudicial because it might have suggested to the jury that the appellant was “mucking the system around”.
[57] There is no substance in this point. Given that the jury were aware that there had been an earlier trial, some explanation was inevitable. Whether or not the explanation included the reason for the retrial was a matter involving the exercise of judicial discretion. No error in the exercise of that discretion has been demonstrated. In any event, we doubt that the Judge’s direction was actually prejudicial to Mr Aroh. Finally, and importantly, the Judge made it very clear to the jury that they were not to concern themselves about the earlier trial and they were to decide the case on the basis of the evidence given at the current trial.
[58] It was also contended that the following lies direction was prejudicial to Mr Aroh:
[156] The significance of this particular data, and indeed all the other disputed evidence between the Crown witnesses and Mr Aroh is the effect this type of evidence has on your conclusion with regard to his credibility. His credibility is very much in issue in this trial.
[157] Ms Gordon said that Mr Aroh lied “on a grand scale” and that you would have to hunt through his evidence for items of truth.
[158] In considering his evidence, you need to be satisfied that he told deliberate lies. You can accept the Crown’s submission, if he wasn’t perhaps mistaken or confused when he gave evidence, and you find it to be untrue. But if you are satisfied that he did tell deliberate lies, you need to be careful about the weight you place on that conclusion.
[159] The mere fact that an accused person did tell lies is not, of itself, evidence of guilt. You must ask yourself what prompted him to do so, and remember that people lie for a variety of reasons – to protect somebody else, because they are embarrassed, or out of panic or confusion – there are many reasons.
[160] If you are satisfied that Mr Aroh did tell deliberate lies, you may regard that as a relevant factor in determining his credibility, that is whether you rely upon the rest of his evidence. That is a matter for you to assess. However, it is important that you guard against any tendency to think that if he told a lie, he must be guilty of the offence of offences with which he is charged for that reason alone.
The complaint was that the lies direction was conveyed in a “most pointed manner” and that it “ought not to be couched in terms that challenge his credibility”.
[59] Again the criticism is without merit. The lies direction was entirely orthodox. Given that lies can only be relevant to credibility it was understandable that the Judge discussed the matter with reference to Mr Aroh’s credibility.
Undue pressure upon the jury
[60] Following closing addresses from defence counsel and the Judge’s summing-up, the jury retired to consider its verdicts at 2.59pm on 22 November 2007. During the remainder of the afternoon they were given two fresh air-breaks at their request. In response to an inquiry from the Judge they indicated at 6.45pm that they were hopeful of reaching verdicts that night and that they wanted to go to dinner. They went to dinner from 7.41pm to 9.30pm.
[61] After resuming deliberations the jury informed the Judge at 9.49pm that progress was being made and they were considering the last two counts. At 11pm they asked for a fresh-air break “as the air in the room is beginning to stagnate (and it is getting very warm due to the non-operation of the air conditioning)”. They were given a fresh-air break. At 12.01am a question concerning similar fact evidence was received from the jury and it was answered by the Judge at 12.20am. After answering the question the Judge asked the jury whether they felt in a position to continue and advised that arrangements could be made for their accommodation, but that they would have to be transported out of town. The jury’s response was that they wished to continue deliberations and that verdicts “may be reached within an hour”. The Registrar was advised at 1.07am that they had arrived at verdicts and the verdicts were delivered at 1.27am.
[62] Mr Lawry argued that it was wholly inappropriate to leave the jury out so late after such a long and complex trial. He submitted that the Judge should have taken control of the situation and sent the jury for overnight accommodation earlier in the evening. He claimed that the indication that accommodation would have to be out of town added to the pressure on the jury. Mr Lawry also told us that the appellant’s belief is that the jury had in fact returned its verdicts later than is indicated by the official record. It seems that Mr Aroh did not arrive at the prison until 3.30am.
[63] Given that Mrs Aroh also relies on this ground of appeal it is appropriate at this juncture to also consider Mr Tomlinson’s submissions on her behalf. He generally supported the points made by Mr Lawry. In particular he expressed concern about: the lateness of the hour to which the jury were allowed to deliberate; the indication that they would have to be transported out of town for accommodation; inevitable fatigue; the size of the juryroom (as commented on by the Judge) plus the absence of air conditioning during the night; a long trial involving many counts; the absence of any urgency to deliberate to such a late hour; and indications that the jury would have been considering Mrs Aroh’s charge from about 9.30pm by which time there was a very high risk of fatigue.
[64] In R v Sampson [1989] 2 NZLR 288 this Court observed (at 291):
Although late hours may give rise to concern in some circumstances, we cannot see how any arbitrary time can be fixed, beyond which all verdicts must be regarded as suspect.
… we think it is necessary to take an overall view of the trial, the summing up, the record of the jury’s deliberations and the character of the verdict, bearing in mind that the trial Judge is often in the best position to exercise an informal discretion about whether or not to discharge the jury.
In that case the jury delivered verdicts at 3am after deliberating for almost 14 hours in relation to seven counts involving cocaine. There were three accused. Given the positive indications that the jury were continuing “in a capable and responsible manner with their task” (at 292), the Court did not consider it would be justified in concluding that the verdicts were unsatisfactory unless there was something about them giving rise to disquiet. There was nothing, and the appeal was dismissed.
[65] Recently this Court applied Sampson in R v CKM [2007] NZCA 92. In that case the jury retired to consider three counts of sexual violation at 12.42pm. At 10.10pm the Judge was informed that 11 of the jury were in agreement. They were given the option to continue their deliberations or return in the morning. The jury elected to continue deliberations and was given a Papadopoulous direction. Following that direction the door to the juryroom was inadvertently left open and a heated discussion was overheard. Guilty verdicts were returned at 11.10pm. An allegation that there was undue pressure on the jury was rejected, and the appeal was dismissed.
[66] A different conclusion was reached in R v Hapeta [1995] 1 NZLR 6 (CA). That case involved seven counts of sexual violation. The jury did not begin deliberating until 9pm. At 2.40am the following morning it reached guilty verdicts on six counts but was unable to reach a verdict on the remaining count. When distinguishing Sampson, this Court made the following observations (at 11):
While there can be no arbitrary maximum for a day’s sitting, in Sampson this Court made it clear that what occurred there was at the limit, and sustainable only because of the particular circumstances. The case had features which distinguish it from the present. The jury had to work its way through a series of counts, and were seen to be doing so; here, the trial involved a single issue, which obviously divided the jury for a long time. Notwithstanding that the Judge observed nothing untoward the prospect that eventually a unanimous verdict was reached for extraneous reasons such as exhaustion, discomfort, or concerns of a family kind is distinct. Nor is it possible to express satisfaction with the verdict in the terms contained in Sampson. Clearly a guilty verdict was open, but on the facts a disagreement or an acquittal could well have resulted…
Taking those matters into account the Court concluded that the risk that a miscarriage had occurred was sufficiently high to require the trial to be regarded as unsatisfactory. A re-trial was ordered.
[67] Although it was open to the Judge to stop the jury deliberating to such a late hour, we are nevertheless satisfied that once an overview is taken of the circumstances, no miscarriage of justice occurred in this case. Throughout their deliberations the jury gave positive indications as to progress and expressed a wish to continue deliberating. They were given regular breaks with the dinner break exceeding one and three quarter hours. Although their verdicts were not delivered in Court until 1.27am, the official record shows that they had advised the Registrar at 1.07am that they had reached verdicts. Despite the appellants’ belief that the jury did not return until later than the official record indicates, we see no reason to go behind that record.
[68] Added to those factors, there is no indication that the jury were divided. To the contrary, they appear to have been working their way methodically through the counts. By 9.49pm they were considering the last two counts and their question at midnight concerning similar fact evidence indicates that they were still carefully considering all relevant issues at that time. All in all, nothing in the information before us gives rise to disquiet about the safety of the verdicts.
Summary
[69] Having considered the eight grounds of appeal advanced by Mr Aroh (with Mrs Aroh also relying on the ground alleging that there was undue pressure on the jury to reach verdicts), we are satisfied that there is no merit in any of those grounds. Mr Aroh’s appeal against conviction fails accordingly.
Mrs Aroh’s appeal against conviction
[70] Four grounds of appeal against conviction are advanced by Mrs Aroh:
(a) Failure to sever her trial;
(b)Fabricated Crown evidence against her;
(c)Error in the Judge’s summing-up;
(d)Undue pressure on the jury to reach verdict.
The last ground of appeal has already been considered in the context of Mr Aroh’s appeal against conviction, and it has failed. We now consider the other three grounds.
Failure to sever the trial
[71] While he accepted that there was no severance application before or at trial, Mr Tomlinson claimed that as the trial progressed Mrs Aroh suffered prejudice that should have prompted severance of her count from those faced by Mr Aroh. He argued that the “overwhelming” case against Mr Aroh and the overly long cross-examination conducted by Mr Aroh’s counsel had compromised Mrs Aroh’s defence. Mr Tomlinson also claimed that once Mr Aroh went into the witness box the situation became even worse because his evidence was overly long, rambling, lacked cohesion, and it was obvious that he was lying.
[72] This ground of appeal has no prospect of success. Even though Mrs Aroh only faced one count (count 4) she faced that count jointly with her husband and there was a connection in time, place and circumstance between that count and the other counts. In terms of s 340 of the Crimes Act 1961 it was entirely appropriate for count 4 to be heard with the other counts against Mr Aroh. At no stage was there an application by Mrs Aroh for severance. Finally, we are not sure that Mr Tomlinson was necessarily right when he claimed that the conduct of Mr Aroh’s defence would have rubbed off on Mrs Aroh’s defence in an adverse way. It is equally possible that the conduct of Mr Aroh’s case was to Mrs Aroh’s advantage.
Fabrication of evidence
[73] Count 4, the only count involving Mrs Aroh, alleged that a package dispatched from Auckland to Brisbane contained a Class A controlled drug. One of the pieces of evidence relied on by the Crown was consignment note CC130719442NZ dated 25 March 2004 which, on the Crown case, related to that package. An employee of New Zealand Post gave evidence that this consignment note, which showed the consignor as “Blessed Jacob”, had been completed at the Parnell Post Shop.
[74] Mrs Aroh maintains that this evidence was fabricated because at the first trial there was evidence that the identifying number of the package was EE130719442NZ (i.e. the same number but a prefix of EE instead of CC). While Mrs Aroh accepts that a parcel was sent to Brisbane by her husband on 25 March 2006, she claims that it was not sent from the Parnell Post Shop, but from the Mount Roskill Post Shop. In other words, her stance is that the package sent by her husband was entirely different and innocent, and neither she nor her husband had any association with the package carrying the CC prefix.
[75] This issue was raised at trial. The evidence was clear that reference at the first trial to the prefix EE was a mistake and that the correct prefix was CC. There was also evidence that those prefixes only indicate an international air option (EE represents a priority service and CC indicates standard service) and it is the unique number (in this case 130719442NZ) that enables a consignment to be tracked during the course of its journey to its destination. Thus there could only be one parcel carrying the unique number and Mrs Aroh’s proposition that there were two parcels was untenable. These matters were therefore before the jury who obviously rejected the proposition that the Crown had concocted evidence against her.
[76] Mrs Aroh also relied on the discrepancy between the weights recorded at the Post Shop (2.91 kilograms) and at the international mail centre (2.9 kilograms). This issue was also traversed at trial with Henry Bauckham, a former security adviser for New Zealand Post. His evidence was that the discrepancy could be explained by a difference between the scales of the Post Shop and those at the international mail centre. Once again the matter was squarely before the jury.
Error in the Judge’s summing-up
[77] With reference to count 4 the Judge told the jury that where people were found to be jointly involved in criminal offending, evidence that would otherwise be inadmissible can be used against a defendant if it relates to the furtherance of a common plan. No issue is taken with that direction which reflects that the co-conspirator’s rule applies to a joint enterprise situation: R v Tauhore [1996] 2 NZLR 641 at 643. The Judge then explained to the jury that the common enterprise alleged by the Crown was dispatch of a package containing drugs by Mr Aroh on or about 27 March 2004 for collection by Mrs Aroh in Brisbane.
[78] It is the next part of the direction by Frater J to the jury that has given rise to this ground of appeal:
[97] You may use the statements in the telephone conversations and emails to which Mrs Aroh was not a party in considering this charge to the extent that they bear upon her involvement in this particular incident.
Those telephone conversations included a conversation on 12 August 2004 between Mr Aroh and Mike in which Mike asked Mr Aroh whether his wife would do an errand “like before”. According to the Crown “like before” referred to her role in the export of drugs to Brisbane on or about 27 March 2004.
[79] Mr Tomlinson argued that this conversation was inadmissible against Mrs Aroh because it took place around six months after the alleged common enterprise giving rise to count 4. Under those circumstances, he submitted, the evidence could have not been in furtherance of that common enterprise, and the Judge should have made that clear to the jury.
[80] No authority was cited by Mr Tomlinson to support his proposition that evidence arising after a common enterprise has been concluded cannot be used to prove that the common enterprise existed. Although the conversation between Mr Aroh and Mike took place approximately six months after the relevant export had occurred, it still had probative value in establishing that the export had in fact occurred. Rather than giving rise to questions of admissibility, it was a question of the weight to be given to the evidence. This appears to have been recognised by Frater J and trial counsel. In her summing up Frater J noted that counsel for Mrs Aroh had asked the jury to take into account that the conversation had been six months after the event and that Mrs Aroh was not a party to the conversation which the Judge said was something that “you need to bear in mind”: at [114]
[81] Thus it was for the jury to give the conversation such weight as it thought fit. No error in the Judge’s summing up has been demonstrated.
Summary
[82] Like the evidence against Mr Aroh in relation to the counts on which he was found guilty, the evidence against Mrs Aroh on count 4 was overwhelming. Her appeal against conviction also fails.
Sentence appeals
[83] On 13 March 2007 Frater J held a facts hearing under s 24 of the Sentencing Act 2002. Mr and Mrs Aroh represented themselves at that hearing during which Frater J recorded detailed findings of fact. Having presided over the lengthy trial she was, of course, well placed to record those findings.
[84] Although Her Honour said that she was satisfied that Mr Aroh was “heavily involved” in the whole operation, she thought it was unlikely that he had been the “international mastermind”: at [27]. Nevertheless, she found that he had played a very important role in the transfer of drugs from South America and Asia, through New Zealand, to the Australian market.
[85] Frater J also said that she accepted that Mr Aroh had instigated and controlled the offending by Mrs Aroh, and that she probably did not know “half of what he was involved in” mainly because his drug dealings were transacted in the Igbo language with Nigerian associates living in China, South America and Australia: at [30]. The Judge noted, however, that Mrs Aroh “is a strong independent character” and that she was willing to become involved in the export of drugs to Australia: at [30].
[86] On the evidence of the ESR scientists the Judge accepted that the cocaine and heroin was, on average, 70% pure. She recorded that the Crown put a street value on the cocaine imported into New Zealand of around $3.6 million and a value of about $1.1 million on the heroin. On the basis that the unspecified drug that had been exported weighed approximately one kilogram and that it was either heroin or cocaine, she concluded that the package exported was, “in rough terms”, worth around $1 million.
[87] When Mr and Mrs Aroh were sentenced on 16 March 2007 they were both represented by counsel. We now consider the Judge’s approach to them individually and their individual appeals against sentence.
Mr Aroh
[88] Frater J noted that Mr Aroh was 42 years of age, was qualified as an architect in Nigeria, had worked hard since arriving in New Zealand, and had no convictions in New Zealand or, as far as she was aware, in any other country. Having noted that he continued to maintain his innocence, saying that he had been convicted on the basis of a made up story, the Judge said that it was her view that if anyone had made up a story, it was him. She observed that when he gave evidence Mr Aroh had changed his position repeatedly on many topics and that she was satisfied that he was “heavily involved” in the whole operation.
[89] Based on R v Wickremasinghe HC AK T013408 28 March 2003, R v Tshisa HC AK CRI-2005-092-4046 29 November 2005, R v Davey HC AK CRI-2005-092-004046 11 October 2005, and R v Tshisa CA507/05 31 August 2006 the Crown argued that the appropriate starting point for Mr Aroh’s offending should be 17 - 18 years. Counsel for Mr Aroh urged the Judge to take the bottom point of the 16 - 18 year range referred to in Wickremasinghe.
[90] Given the large scale nature of the operation, its duration, the quantity and purity of the drugs involved, and Mr Aroh’s role, Frater J concluded that a 17 year starting point was appropriate. She did not consider that there were any mitigating factors, and imposed a sentence of 17 years with a minimum non-parole period of one half of that sentence.
[91] Mr Lawry argued that such a lengthy sentence required a principled approach which was lacking, particularly in relation to the value of the drugs. He argued that to the extent that Mr Aroh was acting as a conduit, he was nothing more than a courier and not at, or near, the top of the tree. Under those circumstances, it was submitted, the starting point was much too high. Moreover, the Judge had failed to consider mitigating features including the absence of previous convictions, absence of family support in New Zealand, and the likelihood that he will be deported at the conclusion of his sentence. It was also contended that the likelihood of deportation meant that the minimum non-parole period served no useful purpose and should be quashed.
[92] While we accept that the 17 year starting point adopted by Frater J was at the top of the available range, we have not been persuaded that it was beyond the range available to the Judge. Having presided at the lengthy trial the Judge was well placed to reach the conclusion that while Mr Aroh was probably not the international mastermind, he was nevertheless “top of the tree” in New Zealand. Given that the importations with which Mr Aroh was charged had been intercepted, it was also possible for the Judge to assess the value and purity of the imports with some accuracy. This was a major importation of cocaine and heroin, and the drugs involved had a high level of purity. Mr Aroh’s overall culpability was aggravated by his involvement in the export to Australia and another attempted export.
[93] In Tshisa this Court considered offending that has close parallels with Mr Aroh’s offending. Cocaine and methamphetamine had been imported into New Zealand and cocaine had been exported. Although the street value was marginally higher in that case, the overall offending was in a similar bracket to the offending in this case. The appellant, a Nigerian, had pleaded guilty. At sentencing in the High Court Baragwanath J concluded that although Mr Tshisa was unlikely to have been the international mastermind, he was nevertheless the “prime mover” in New Zealand. Like Mr Tshisa, Mr Aroh was the prime mover in New Zealand as he alone received the drugs into New Zealand and exported them. Baragwanath J took a starting point of 17 years, deducted four years for the guilty plea, and imposed a sentence of 13 years imprisonment. Mr Tshisa appealed.
[94] On appeal this Court followed its earlier decision in R v Liava’a & Ors CA175/98-179/98 17 August 1998 which indicated a starting range for top level Class A drug offending on a large commercial scale of 17 to 18 years. The Court observed:
[23] The primary focus in sentencing for class A drug offending must be the seriousness of the offending and the culpability of the offender. This is established by reference to the number of offences, the quantity, quality and value of the drugs involved, and the extent of the offender’s involvement.
Applying those principles the Court upheld Baragwanath J’s starting point of 17 years and concluded that the sentence was not manifestly excessive. The appeal was dismissed. We cannot see any sound basis for distinguishing the starting point of 17 years in that case from the same starting point adopted by Frater J in this case.
[95] Mr Lawry argued that there should have been an allowance for Mr Aroh’s previous good record and the fact that he will have to serve his term of imprisonment in a foreign country without family support. Recently this Court noted in R v Guthrie [2008] NZCA 439:
[17] While there is ample authority for the proposition that the personal circumstances of drug offenders will normally be subordinated to the statutory purpose of deterrence, that does not mean personal circumstances can never be relevant as the Supreme Court has recently confirmed in Jarden v R [2008] NZSC 69 at [12]. The Supreme Court added at [14] that the personal circumstances of an offender may be relevant either because they contributed in some way to the offending or on purely compassionate grounds.
We have carefully considered Mr Lawry’s submission in light of the Supreme Court’s direction, but are satisfied that the circumstances faced by Mr Aroh are not of such significance that a reduction in sentence is warranted.
[96] As to the minimum non-parole period, the Judge accepted that the standard one-third period provided for in the Parole Act 2002 was insufficient to hold Mr Aroh accountable, to denounce his conduct, and to deter others. A minimum non-parole period of one half of the final sentence was imposed accordingly. We do not accept that this minimum non-parole period serves no useful purpose. In major drug offending deterrence of others is a very weighty factor. To that extent the minimum non-parole period serves a useful purpose.
[97] We have not been persuaded that Mr Aroh’s sentence was manifestly excessive. His appeal against sentence fails.
Mrs Aroh
[98] Frater J noted that Mrs Aroh was 43 years of age and that she had had an unfortunate childhood, having been “bounced around” between family members and social welfare. She also recorded that Mrs Aroh has two adult, or near adult, children and a young child from her marriage to Mr Aroh (who was going to be cared for by one of her adult daughters during Mrs Aroh’s incarceration). Although Mrs Aroh has a list of previous convictions, the Judge took into account that they were of quite a different character from the offending for which she was to be sentenced and that her last conviction had been in 1985. Given those matters Mrs Aroh was sentenced on the basis that she was a first offender.
[99] Like Mr Aroh, Mrs Aroh vehemently maintained her innocence in respect of the charge on which she had been convicted. Justice Frater said that she did not have a problem with the jury’s verdict. She repeated her finding under s 24 of the Sentencing Act that Mr Aroh was the instigator and Mrs Aroh probably did not know half of what he was involved in, but that she was satisfied that Mrs Aroh was a strong, independent character who knew at least something of what was going on and willingly became involved in the export of drugs to Australia.
[100] The Crown argued that the appropriate starting point for Mrs Aroh was 12 – 13 years on the basis that she was in a similar position to the prisoner in Davey in relation to whom Williams J adopted a starting point of 12 years imprisonment. On the other hand, counsel for Mrs Aroh sought a sentence in the vicinity of five to six years on the basis that Mrs Aroh’s role was very much a secondary role, that she was dominated by her husband, and was motivated by loyalty rather than greed.
[101] Although the Judge adopted the Crown’s estimate of the weight of drugs that were exported (approximately 1 kg having a street value of around $1 million), she reduced the starting point of 12 years adopted by Williams J in R v Davey by one year to reflect her uncertainty about the nature and purity of the Class A drug that had been exported to Australia in August 2004. The Judge made a further deduction of two years “to give some acknowledgement of the dynamics of your relationship with Mr Aroh and your relative culpability”: at [48]. She made it clear, however, that she did not regard Mrs Aroh as “mere dupe in this operation”: at [48]. Thus the final sentence imposed on Mrs Aroh was nine years imprisonment.
[102] Mr Tomlinson submitted that the Judge’s starting point was too high. He argued that there was no reliable evidence as to the quantity or purity of the drugs exported from New Zealand to Australia in terms of count 4 and there was no proper basis for the Judge’s approach that the export had involved drugs having a street value of around $1 million. He argued that this had led the Judge to overstate the appellant’s culpability for the purpose of adopting an appropriate sentencing band. He also argued that the Judge had made insufficient allowance for the fact that Mrs Aroh was in effect “just the courier” and had an extremely limited role. It was contended that she had also failed to give sufficient weight to the appellant’s personal circumstances, including that she was a first offender, under the influence and control of Mr Aroh, and that she had a young child. Various authorities were cited to support those submissions.
[103] While, as Frater J recognised, there were difficulties in determining the actual Class A drug that had been exported to Brisbane and the precise quantity and purity, the Judge was nevertheless entitled to draw any inferences that were available on the evidence. Given the extensive evidence that had been led at trial it was open to the Judge to infer that the export to Brisbane involved either cocaine or heroin of relatively high purity. Based on the pattern of offending and the weight of the package, it was also reasonable to infer that the export involved a very substantial quantity of drugs. Added to those factors, Mrs Aroh was not “just the courier”. She was a crucial intermediary who collected the drugs that she knew were being exported to Brisbane and then transported them within Australia for delivery to the final recipient.
[104] In Wickremasinghe Chambers J considered that the starting point for those involved in a courier role in relation to Class A drugs was in the region of 12 – 13 years imprisonment. Having reviewed the authorities Williams J adopted a starting point of 12 years imprisonment in R v Davey for a courier facing one count of exporting heroin weighing between 480 – 600 grams which was worth in the order of $500,000 and $840,000. We do not consider that Frater J erred by applying that decision as her yardstick. In all the circumstances the reduction of three years, to reflect any uncertainty about the nature/purity of the drug, Mrs Aroh’s relationship with her husband, and her relative culpability, was appropriate. We have not been persuaded that the Judge was obliged to provide a further reduction to reflect the factors advanced by Mr Lawry. When reaching that conclusion we have taken into account the Supreme Court’s direction concerning personal circumstances.
[105] Mrs Aroh’s sentence was not manifestly excessive. Her appeal against sentence also fails.
Result
[106] Mr and Mrs Aroh’s appeals against conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington
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