R v Bhikoo
[2017] NZHC 3022
•6 December 2017
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 McLellanJudgment:
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 this regard.
[6] Detective Sergeant Sowter was asked about common dealing amounts of cocaine and stated the following:
Largely it’s very similar to meth, so it will be gram weights, it will be dealt with in ounces and then larger amounts from there. Also it will be broken down, half and three quarter or quarter amounts sorry, of those particular sizes, so quarter gram, half gram, half ounce, that sort of thing.
[Emphasis added]
[7] Detective Sergeant Sowter was also asked about pricing. He said that “as a general guideline, a gram would go between $250 to $400 and an ounce would be
$7,000 to $9,000”.
[8] In relation to purity, Detective Sergeant Sowter said that a lot of cocaine which has been seized over the years imported straight from South America is between 60 to
80 per cent purity. He went on to state:
It has over recent years been dealt with in that same without being cut but there has been quite a lot that has also been cut with other substances so it reduces the purity.
[Emphasis added]
[9] Detective Sergeant Sowter said the purity of cocaine did not tend to affect its pricing, though if a user did not ultimately get his or her high, there may be complaints about the drug being cut and the user might stop going to that particular dealer.
[10] As explained in my judgment dated 2 November 2017, Mr McLellan generally supplied cocaine to Mr Bhikoo for Mr Bhikoo to on-supply to others. Mr McLellan generally supplied the cocaine to Mr Bhikoo in 1 and 1½ ounce rectangular blocks and smaller circular discs, using wooden and plastic presses. This was done for cosmetic/marketing purposes.
[11] Detective Sergeant Sowter gave evidence as to the quantity and nature of cocaine located at Mr McLellan’s home on termination. This is not in dispute.
[12] A total of 75.1 grams of cocaine was found at Mr McLellan’s home. This was broken down into four separate amounts:
(a) 27.8 grams was located in one of the presses to which I have referred earlier. This equates to approximately one ounce. This cocaine had a purity of 28 per cent.
(b)A total of 26.5 grams was located in 28, 1-gram self-sealing bags. This cocaine had a purity of 28 per cent.
(c) 7.5 grams was found in a separate self-sealing bag. This equates to approximately a quarter ounce. This cocaine had a purity of 28 per cent.
(d)13.3 grams of cocaine was found in a separate self-sealing bag. This equates to approximately a half ounce. This cocaine had a purity of 58 per cent.
[13] Detective Sergeant Sowter also gave evidence that at both Mr Bhikoo and
Mr McLellan’s premises, the police found various utensils and other paraphernalia which indicated consumption of drugs (cocaine, marijuana and methamphetamine). There is no dispute that Mr Bhikoo and Mr McLellan were themselves users of drugs, including cocaine.
[14] The analysis of the cocaine located at Mr McLellan’s home indicated the presence of levamisole, though this could not be confirmed. Levamisole is used as a cutting agent.
[15] Detective Sergeant Sowter also produced several exhibits, including two volumes of transcripts of intercepted communications between Mr Bhikoo,
Mr McLellan and others. In one communication between Mr Bhikoo and
Mr McLellan, it was noted the cocaine was selling “like hotcakes”. There was, however, also some evidence of complaints about the quality of the cocaine:
(a) On 23 June 2016, there was a communication from Mr Misipati to
Mr Bhikoo regarding 28 grams of cocaine that had previously been supplied on or about 10 June 2016. Mr Misipati stated:
Do you want it back? … if you can get rid of it, get rid of it …
some said .. there’s too much cut in it.
(b)On 15 August 2016, there was a communication from a customer of Mr Bhikoo’s regarding an unknown amount of cocaine that had previous been supplied on 15 August 2016. The customer stated:
I don’t mean to be rude, or grateful, or anything … but fucken hell that stuff is (pause) like there’s shit in it … and like it’s definitely cut with something.
Submissions
[16] Based on the Court of Appeal’s decision in Haarhaus v R, the Crown submits that where there is no direct evidence of the purity of the relevant controlled drug, a defendant may be sentenced on the purity level which can be inferred from the available evidence.3 The Crown submits that in relation to cocaine being dealt by Mr Bhikoo, it is an available inference from the evidence discussed above that its purity was between 28 and 58 per cent. In particular, the Crown submits all the amounts found at Mr McLellan’s premises were in common dealing amounts ready for on-sale to customers, including the 13.3 grams of cocaine (equivalent to a half ounce) with a purity of 58 per cent.
[17] The defendants submit the Crown has not established purity of between 28 to
58 per cent beyond reasonable doubt. The defendants point to the fact that three out of the four separate amounts of cocaine found at Mr McLellan’s home had a purity of only 28 per cent. They further say the cocaine with a purity of 58 per cent was for
Mr McLellan’s personal use, given it is not in dispute that he was himself a user of the
drug. This is consistent with the evidence of drug use found at Mr McLellan’s home.
3 Haarhaus v R [2010] NZCA 41.
Analysis
[18] Pursuant to s 24(2)(c) of the Sentencing Act 2002, the onus is on the Crown to prove a disputed aggravating fact beyond a reasonable doubt. I accept the Crown’s submission that where there is no direct evidence of purity, a finding on purity can nevertheless be made on the basis of an inference to be drawn from all the available evidence. This is of course how other relevant facts are routinely proved when in dispute.
[19] Mr Mansfield, for the defendants, refers to the Court of Appeal’s judgment in R v Moananui.4 In that case, Cooke J delivering the judgment of the Court, made the following observation in relation to a disputed fact:5
If there is conflicting evidence the Judge will have to make [their] own assessment of the facts, giving the benefit of any reasonable doubt to the accused.
[20] However, more recent Court of Appeal authority has confirmed that nothing said in R v Moananui stands for a presumption of resolving factual conflicts relevant to sentencing in a manner favourable to the defendant. Referring to the above extract from R v Moananui, the Court of Appeal in Pui v R stated:6
That observation reflects nothing more than what is said in s 24(2)(c): that before a Judge can take an aggravating fact into account that fact must be adequately proved. Beyond that, it says nothing about any preference in favour of a defendant.
[21] Based on the evidence presented through the disputed facts hearing, I am satisfied that all the separate amounts of cocaine found at Mr McLellan’s home were in common dealing quantities. As noted at [12] above, the amounts found equated to
1 ounce, 28 separate 1 gram bags, a quarter ounce and a half ounce. Detective
Sergeant Sowter said that all these amounts were common dealing quantities.7
[22] Nevertheless, three out of the four amounts of cocaine found at Mr McLellan’s home had a purity of 28 per cent. Only one had a purity of 58 per cent. The defence
4 R v Moananui [1983] NZLR 537 (CA).
5 At 543.
6 Pui v R [2014] NZCA 332 at [23].
7 See [6] above.
submits it cannot be excluded as a reasonable possibility that this was for
Mr McLellan’s own personal use.
[23] Ultimately, I remind myself that the Crown must prove the disputed fact beyond reasonable doubt. I must therefore be sure the quantities of cocaine dealt by Mr Bhikoo and Mr McLellan had a purity of between 28 per cent and 58 per cent. I am not sure of that fact. I do not consider it is a safe inference that can be drawn from the presence of the one amount of cocaine found at Mr McLellan’s home with a purity of 58 per cent, particularly when the remainder of the cocaine had a purity of only 28 percent. Mr McLellan was personally using cocaine and it is of course logical to infer that he did not source the cocaine for his personal use from others. In my view, it is also a reasonable possibility that the cocaine with 58 per cent purity was intended to be cut (i.e. as per the one and quarter ounce amounts) but had not yet been, or that Mr McLellan might have put aside some of that cocaine for his own personal used before cutting the balance for on-supply to Mr Bhikoo.
[24] Cocaine being supplied with a lower level of purity is also consistent with the evidence of two complaints received by Mr Bhikoo and referred to at [15] above Nevertheless, I do not consider those two complaints to be a material factor in and of themselves. They appear to be two relatively isolated instances in what was otherwise a regular course of dealing, and when the evidence also demonstrates the cocaine was selling “like hotcakes”.
[25] Overall, however, I do not consider it is open to the Court to sentence on the basis that, other than the cocaine found in Mr McLellan’s home where purity is known, all other cocaine supplied and in possession for supply by Mr Bhikoo and
Mr McLellan had a purity of between 28 per cent and 58 per cent. Rather, 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.8
8 This of course excludes the cocaine located at Mr McLellan’s home, in respect of which actual purity is known.
Updating sentencing submissions
[26] Counsel may file updating sentencing submissions in light of this judgment. Given the proximity of sentencing, any updating submissions which counsel wish to file are to be filed and served no later than 5 pm, Tuesday 12 December 2017.
Fitzgerald J
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