R v Bhikoo - [2017] NZHC 3022

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2016-004-8720 [2017] NZHC 3022

THE QUEEN

v

MOBEEN BHIKOO BENJAMIN ALEXANDER MCLELLAN

Hearing: On the papers

Counsel:

BD Tantrum for the Crown
RM Mansfield for M Bhikoo and BA McLellan

Judgment:

6 December 2017

JUDGMENT OF FITZGERALD J [As to dispute regarding purity]

This judgment was delivered by me on 6 December 2017 at 4 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v Bhikoo [2017] NZHC 3022 [6 December 2017]

Solicitors: Meredith Connell, Auckland
Dominion Law, Auckland

Introduction

[1] Mr Bhikoo and Mr McLellan are to be sentenced on 18 December on various drugs charges to which they have pleaded guilty, largely relating to the supply and possession for supply of cocaine. The charges to which Mr Bhikoo had pleaded guilty concern him supplying, or being in possession for supply, of at least 227 grams of cocaine. The charges to which Mr McLellan has pleaded guilty concern him supplying, or being in possession for supply, of at least 257 grams of cocaine. The purity of the cocaine being supplied is, however, in dispute.1

[2] The Crown submits the evidence demonstrates that, other than the cocaine found at Mr McLellan’s home on termination (in respect of which actual purity is known), Mr Bhikoo and Mr McLellan were dealing cocaine with a purity of between
28 and 58 per cent. However, Mr Bhikoo and Mr McLellan say the Crown has not established that fact beyond reasonable doubt. They say the only available inference is the cocaine being dealt had a purity of 28 per cent.

Disputed facts hearing

[3] A disputed facts hearing was held before me on 19 October 2017. Disputes had arisen from the summary of facts for each of Mr Bhikoo and Mr McLellan in relation to the quantity and purity of cocaine supplied. I was, however, asked to make a ruling on quantity only. I issued a judgment on quantity on 2 November 2017.2

[4] The parties then filed sentencing submissions. Counsel for Mr Bhikoo and

Mr McLellan raised the issue that the Crown sentencing submissions were premised on 100 per cent purity. It was said this could not be so, in light of the evidence given at the disputed facts hearing. After conferring with counsel, it was agreed that a ruling
would also be required in relation to purity.

1 Other than amounts of cocaine found at Mr McLellan’s home on termination, which were analysed for purity and in respect of which there is no dispute.
2 R v Bhikoo [2017] NZHC 2688.

The evidence

[5] Detective Sergeant John Sowter gave evidence at the disputed facts hearing. He confirmed that while, formally, he was second-in-charge of the relevant police operation, he effectively ran the investigation. Detective Sergeant Sowter also gave expert evidence as to the nature, pricing and common dealing amounts of cocaine. Defence counsel accepted Detective Sergeant Sowter’s expertise in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Bhikoo

Details

AGLC: R v Bhikoo [2017] NZHC 3022
Case: [2017] NZHC 3022
Decision Date: 6 December 2017

CaseChat Overview and Summary

Mr Bhikoo and Mr McLellan are to be sentenced on drugs charges to which they have pleaded guilty, relating to the supply and possession for supply of cocaine. The purity of the cocaine being supplied is in dispute. The Crown submits that the evidence demonstrates that, other than the cocaine found at Mr McLellan’s home on termination, Mr Bhikoo and Mr McLellan were dealing cocaine with a purity of between 28 and 58 per cent. Mr Bhikoo and Mr McLellan say the Crown has not established that fact beyond reasonable doubt and that the only available inference is the cocaine being dealt had a purity of 28 per cent. The Court found that the Crown had not proved beyond reasonable doubt that the purity of the cocaine being supplied was between 28 per cent and 58 per cent. It is open to the Court to sentence on the basis that the cocaine supplied and in possession for supply had a purity of approximately 28 per cent. Counsel may file updating sentencing submissions in light of this judgment. Any updating submissions which counsel wish to file are to be filed and served no later than 5 pm, Tuesday 12 December 2017.

Orders