R v Bhikoo
[2017] NZHC 2688
•2 November 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 2688
THE QUEEN
v
MOBEEN BHIKOO BENJAMIN ALEXANDER MCLELLAN
Hearing: 19 October 2017 Counsel:
BD Tantrum for Crown
RM Mansfield for M Bhikoo and BA McLellanJudgment:
2 November 2017
JUDGMENT OF FITZGERALD J [Disputed facts hearing]
This judgment was delivered by me on 2 November 2017 at 4:30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
R v Bhikoo [2017] NZHC 2688 [2 November 2017]
Solicitors: Meredith Connell, Auckland
Dominion Law, Auckland
Introduction
[1] The defendants have each pleaded guilty to a number of charges of supply and possession of the Class A drug cocaine. In the context of these charges, it is accepted by both defendants that Mr McLellan supplied cocaine to Mr Bhikoo which
Mr Bhikoo then on-supplied to others.
[2] The summaries of facts for sentencing purposes are largely agreed. However,
Mr Bhikoo disputes the quantum of cocaine he is said to have supplied in respect of two charges (Charges 15 and 30). Mr McLellan disputes the quantum of cocaine he is said to have supplied to Mr Bhikoo (for Mr Bhikoo to on-supply to others) in respect of one charge (also Charge 30).
[3] The amounts in dispute are not insignificant and will be relevant to each of
Mr Bhikoo and Mr McLellan’s sentence.1
[4] This judgment considers whether the Crown has proved beyond reasonable doubt the quantum of cocaine said to have been supplied in relation to Charges 15 and
30 (for Mr Bhikoo) and Charge 30 (for Mr McLellan).
Background and what is in dispute
Charge 15 – summary of facts
[5] The summary facts for Mr Bhikoo relevantly provides as follows in relation to
Charge 15:
M o b e e n B h i k o o' s s m al l er c us t o m er s
Supplying and offering to supply cocaine (charges 3, 7, 10, 15 and 22)
…
1 A further more minor issue was canvassed at the outset of the disputed facts hearing, namely how many persons Mr Bhikoo supplied over a defined period, for the purposes of a representative charge. Counsel for all parties submitted, and I agreed, that this issue will not be material for the purposes of sentencing.
[PH] was a customer buying cocaine from Mobeen Bhikoo. From 19 May
2016 to 13 July 2016 Mobeen Bhikoo offered [PH] unknown amounts of cocaine on numerous occasions and on 27 May 2016 supplied him with 28
grams of cocaine.
[6] Mr Bhikoo accepts that he supplied cocaine to PH on 27 May 2016, but says the Crown has not proved how much. Mr Bhikoo says that the summary of facts should therefore record an unknown quantity of cocaine having been supplied to PH on that date.
Charge 30 – summaries of facts
[7] The summary of facts for Mr Bhikoo relevantly provides as follows in relation to Charge 30:
Mobe en Bhi koo’s l arger cust omer s
Supplying cocaine and possession of methamphetamine (charges 9, 17, 24,
27, 30 and 36)
…
On 30 July 2016 Mobeen Bhikoo and Benjamin McLellan supplied Cameron Logan with 56 grams of cocaine. Mobeen Bhikoo called Bejamin McLellan to source the cocaine from him for Cameron Logan.
[8] The summary of facts for Mr McLellan relevantly provides as follows in relation to Charge 30:
Supplying cocaine (charges 13, 25, 26 and 30)
…
On 29 July 2016 Benjamin McLellan supplied 56 grams of cocaine to Mobeen
Bhikoo so that he could on supply that to Cameron Logan.
[9] Mr Bhikoo and Mr McLellan both accept that Mr McLellan supplied to
Mr Bhikoo with 28 grams of cocaine on 29 July 2016. However, Mr Bhikoo and
Mr McLellan dispute that Mr McLellan supplied 56 grams of cocaine to Mr Bhikoo, or that Mr Bhikoo on-supplied 56 grams to Mr Logan. Rather, they say there is no evidence of what amount was on-supplied to Mr Logan.
Jurisdiction
[10] Given these disputed facts, a disputed facts hearing was convened under s 24(2) of the Sentencing Act 2002.
[11] Section 24 of the Sentencing Act 2002 provides as follows:
24 Proof of facts
(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.
[12] The approach taken to a hearing pursuant to s 24(2) was helpfully summarised by Stevens J in R v Haarhaus:2
2 R v Haarhaus HC Auckland CRI-2007-004-18646, 4 June 2009.
[9] The approach required at such a disputed facts hearing is as follows. First, the Judge must accept as proved all facts, express or implied, that are
essential to a plea of guilty: see s 24(1)(b) of the Act and R v Bryant [1980]
1 NZLR 264 (CA) at 269. Second, the Judge may accept as proved any facts agreed on by the prosecutor and the offender: see s 24(1)(a). This applies
to the undisputed portions of the Crown summary. Where facts remain in
dispute, the Court must indicate to the parties the weight it would be likely
to attach to the disputed fact and its significance to the sentence: see s
24(2)(a). This aspect was addressed by Lang J when the pleas of guilty were taken. Next, if the prosecutor wishes to rely on a disputed aggravating fact,
the prosecutor must prove its existence beyond reasonable doubt: see s
24(2)(c). Evidence as to the existence of such fact may be adduced at a hearing:
see s 24(2)(b). Further, either party may cross-examine any witness called at the hearing: see 24(2)(e). Finally, the Court must determine whether the prosecutor has proved the existence of any disputed aggravating fact beyond reasonable doubt.
[13] At the disputed fact hearing, Mr Tantrum (for the Crown) called Detective Sergeant Sowter. Detective Sergeant Sowter ran a covert investigation (known as “Operation Ceviche”) into an Auckland cocaine ring. At the hearing, Detective Sergeant Sowter produced as exhibits two volumes of transcripts of intercepted telephone calls obtained during Operation Ceviche. He also gave evidence as to the nature, common amounts for supply, and pricing of cocaine.
[14] By consent, Detective Sergeant Sowter also gave evidence of certain video surveillance footage obtained as part of Operation Ceviche.
[15] Detective Sergeant Sowter was then cross-examined by Mr Mansfield (counsel for Messrs Bhikoo and McLellan).
Charge 15
The evidence
[16] The evidence upon which the Crown relies in relation to Charge 15 is largely intercepted telephone calls between Mr Bhikoo and Mr McLellan, and Mr Bhikoo and PH.
[17] The first relevant communication occurred on Friday, 27 May 2017. At
4.50 pm that day, Mr Bhikoo telephoned Mr McLellan noting that he had “a guy coming to my house in half an hour” with Mr Bhikoo then stating “A biggy. Any
biggy?” It is accepted that the reference to a “biggy” is a reference to 28 grams of cocaine.
[18] Mr McLellan replied that he probably had “about one-and-a-half left” but that
it hadn’t been “pressed”.3 Mr Bhikoo said that that did not matter. Arrangements were made for Mr Bhikoo to collect the cocaine from Mr McLellan. Mr Bhikoo does not dispute that at approximately 5 pm on Friday 27 May 2016, he received 28 grams of cocaine from Mr McLellan.
[19] A few minutes later, at 5.05 pm, Mr Bhikoo telephoned PH. He got PH’s messaging service and asked for PH to call him back. PH called Mr Bhikoo back at approximately 5.14 pm. Mr Bhikoo said “I just thought I’d let you know. Disregard what [M] said”.4 PH obviously knew what Mr Bhikoo was talking about and arrangements were made for PH to meet Mr Bhikoo later that evening, at Mr Bhikoo’s home.
[20] There is then video surveillance footage of a male arriving at Mr Bhikoo’s home at 5.26 pm that day, and leaving approximately 29 minutes later. Mr Bhikoo accepts this was PH.
[21] The next relevant event is a telephone call from Mr Bhikoo to Mr McLellan later that evening, at 8.53 pm. Mr Bhikoo was responding to an earlier missed call from Mr McLellan. Mr McLellan was evidently checking whether what he had supplied Mr Bhikoo earlier that day was “over” (meaning he had supplied Mr Bhikoo with more cocaine than intended). Mr Bhikoo replied “yeah, yeah it was”. Mr Bhikoo confirmed that he had “got it for ya”, implying that he was going to return the “excess”
cocaine to Mr McLellan.
3 It is accepted that, before supplying to Mr Bhikoo, Mr McLellan would typically “press” the cocaine into 1 and 1½ ounce blocks and smaller circular discs, using a wooden press. This was done for cosmestic/marketing purposes.
4 M is PH’s partner.
[22] The following day (Saturday 28 May 2016), at approximately 6 pm,
Mr Bhikoo called a mobile telephone number and spoke with PH’s partner (PH was in the background). In that call, M confirmed that PH was feeling “quite average”.
Submissions
[23] Mr Tantrum submits that it is accepted that on 27 May 2016, Mr McLellan supplied 28 grams of cocaine to Mr Bhikoo, and there is no suggestion that full amount was not supplied to PH. Inherent within Mr Tantrum’s submissions are an invitation for the Court to draw the following inferences:
(a) First, that the “biggy”, i.e. 28 grams of cocaine Mr Bhikoo discussed in his phone call with Mr McLellan on Friday 27 May 2016, was intended for PH; and
(b) Second, that amount was indeed supplied to PH later that day.
[24] Conversely, Mr Mansfield submits that these are not safe or logical inferences that can be drawn from the evidence. He says there is no evidence that PH asked
Mr Bhikoo for a “biggy”, rather than that being what Mr Bhikoo requested from
Mr McLellan. Mr Mansfield submits that, in light of the conversation about the amount Mr McLellan supplied Mr Bhikoo being “over”, it is logical to infer that
Mr Bhikoo weighed the amount of cocaine before he gave any to PH. He submits this would not have occurred had the full 28 grams been intended for a straight on- supply to PH. Mr Mansfield also submits that the intercepted telephone conversations between Mr Bhikoo and PH’s partner, M, indicate that it is possible that when PH spent 19 minutes at Mr Bhikoo’s property, the two men (being drug users) consumed some of the cocaine together.
Analysis
[25] I remind myself, as I would remind a jury, that I need to be sure that Mr Bhikoo supplied 28 grams of cocaine to PH on 27 May 2016. If I consider the evidence gives rise to a reasonable possibility that a lesser amount was supplied, then I cannot be sure.
[26] I am not satisfied beyond reasonable doubt that Mr Bhikoo supplied 28 grams of cocaine to PH on 27 May 2016. Mr Bhikoo certainly received that amount of cocaine from Mr McLellan. But the evidence does not demonstrate that PH himself had requested that amount from Mr Bhikoo, nor do I consider that to be the only logical inference that can be drawn from the various telephone conversations. It is not in dispute that Mr Bhikoo supplied cocaine to other people around this period. In the absence of any other evidence that PH had requested 28 grams of cocaine from Mr Bhikoo, it is a reasonable possibility that only some of the cocaine that Mr Bhikoo obtained from Mr McLellan on 27 May 2016 was destined for PH (with the remainder to be used to supply others, or potentially for Mr Bhikoo’s own use).5 I also take into account the likelihood that Mr Bhikoo weighed the cocaine before supplying it to PH (which could be said to have been unnecessary had a straight on-supply of the full 28 grams to PH been intended), and that it is accepted that PH was one of Mr Bhikoo’s “smaller customers” (as characterised in the summary of facts). All other known amounts supplied to such customers are significantly less than 28 grams.6
[27] Accordingly, based on the evidence relevant to this charge, I cannot exclude as a reasonable possibility that Mr Bhikoo supplied something less than 28 grams of cocaine to PH on 27 May 2016.
Charge 30
[28] Charge 30 gives rise to similar issues.
[29] Again, most of the evidence relied on by the Crown is intercepted telephone calls between Mr Bhikoo and Mr McLellan, and Mr Bhikoo and Mr Logan.
[30] Mr Bhikoo called Mr Logan at approximately 3.20 pm on 28 July 2016. During that call, they made arrangements to meet the following day.7
5 It not being in dispute that, at this time, Mr Bhikoo was himself a user of cocaine.
6 A supply of (in excess of) 17 grams of cocaine to another “smaller customer” over a six-month period; a supply of 2 grams to another customer on one occasion in March 2016; and a total of
8 grams supplied to another in the first half of July 2016.
7 However, there is no evidence that they met the next day.
[31] On 29 July 2016 at 2.26 pm, Mr Bhikoo telephoned Mr McLellan, noting that he needed to catch up with Mr McLellan that night. The following exchange took place:
BHIKOO (Cut Over) Yeah just-just, just, …… I wanted one a them aye if that’s cool.8
McLELLAN Oh okay, yeah yeah yeah um.
BHIKOO And-and then um. Yeah I’ll talk to you about the other. McLELLAN Is it um. Is-is it one, like one in total ………………? BHIKOO Yeah one ah all, already ……………..
McLELLAN (Cut Over) Already …….. BHIKOO Nah two a those.
McLELLAN Oh okay, yeah yeah yeah.
BHIKOO Yeah.
[Emphasis added]
[32] Later in the call, when making arrangements to meet with Mr McLellan,
Mr Bhikoo states “I mean it’s not till tomorrow” (being a reference to his meeting with
Mr Logan, which had evidently been put off from the previous day).
[33] On Saturday, 30 July 2016 at 11.02 am, Mr Bhikoo called Mr McLellan, asking whether he should “roll past now buddy” (namely to collect the cocaine).
Mr McLellan said “Nah fuck cos it’s not even fucken ... in the thing yet aye”. This is a reference to the cocaine not yet being in the press. Mr McLellan went on to state “that’s why I said for him for the afternoon aye”. Mr Bhikoo had evidently forgotten about that timing point. Mr McLellan noted that he was just going to “dice it up and put it in the thing” and to “just maybe yeah, give it a few hours if that’s cool”.
Mr Bhikoo agreed, and asked Mr McLellan to call when it was ready. Mr McLellan noted that they would aim for around 3.30pm that afternoon.
[34] At approximately 3.19 pm on Saturday, 30 July 2016, Mr Bhikoo received a call from Mr Logan. They confirmed that Mr Bhikoo would meet Mr Logan later that
8 It is not in dispute that the reference to wanting “one” of them is a reference to 28 grams of cocaine.
afternoon. Mr Logan inquired whether it might be 5 pm or 6 pm. Mr Bhikoo noted that he would give Mr Logan a call.
[35] Consistent with Mr Bhikoo’s earlier call with Mr McLellan (see [33] above), at approximately 3.50 pm on Saturday 30 July 2016, Mr Bhikoo received a call from
Mr McLellan, in which Mr McLellan asked “what time’s your guy coming?”
Mr Bhikoo responded that he had told him to come at “6.30”. The balance of the conversation is relied on by the Crown and set it out in full:
McLELLAN Okay um, well that's. I mean even if like that's all good, I mean the longer the, the better and that fucken thing. Um-m, but um and Simi'll be home by then so I can if, if you're stuck there I can……… got there earlier I can fucken just fly out.
BHIKOO Um, up to you brother. Ah oh yeah, I mean I, (Pause) I could come out ...........
McLELLAN (Cut over) Yeah. See I mean ju- ju-, just see how. Yeah I mean that's what I'm saying wa- if you can get here like but, but if you don't get here by like six.
BHIKOO Yeah.
McLELLAN Um, just with Trish then I'll fucken, I'll huck out while
Casper's eating dinner. BHIKOO Okay cool, um .......... ..
(Conversation not related to these proceedings)
McLELLAN See, see how um yeah see how you get on and just um but like fuck like say that's like by that time it's no stress, I can fucken fly out and um. I. What I've done is I've just done one's, one's getting done and I'll, I'll break down one of the other one's.
BHIKOO (Cut over) .......... ..
McLELLAN ... Um just so that ………….. kind of fucken what, whatever happens with that one then at least there's something there. ·
BHIKOO ............ bro, sweet thanks. McLELLAN I'll talk to you soon.
BHIKOO Alright matey.
[Emphasis added])
[36] At 6.05 pm on 30 July 2016, Mr Bhikoo called Mr McLellan, who confirmed that he was a couple of minutes away. At approximately 6.49 pm, Mr Bhikoo called
Mr Logan, stating that he (i.e. Mr Bhikoo) was at home and inquiring what
Mr Logan’s plans were. Mr Logan noted that he was “gonna head out. I’ll, I’ll pu-, I’ll put it out there now”.
Submissions
[37] Mr Tantrum for the Crown invites me to draw a number of inferences from the above telephone conversations:
(a) First, and based on the telephone call between Mr Bhikoo and
Mr McLellan at 2.26 pm on 29 July 2016 (see [31] above), while
Mr Bhikoo was originally wanting to source only 28 grams of cocaine,9
that was changed to 56 grams.10
(b) Second, given Mr McLellan’s comments in the telephone call at
3.50 pm on 30 July 2016,11 there was sufficient time between that call and the meeting with Mr Logan in the early evening for a second block of cocaine to be ready.
[38] Mr Mansfield submits that, while it is not in dispute that Mr McLellan supplied
28 grams to Mr Bhikoo on 30 July 2016, there is no evidence that a second block (i.e. the second 28 grams) was either requested by Mr Bhikoo or ready by the time of the meeting with Mr Logan. He also submits there is no evidence that even the full amount of 28 grams of cocaine was supplied by Mr Bhikoo to Mr Logan on 30 July
2016.
Analysis
[39] I am satisfied that the evidence proves beyond reasonable doubt that
Mr Bhikoo supplied 28 grams of cocaine to Mr Logan on Saturday, 30 July 2016. I
9 “I wanted one a them aye if that’s cool”.
10 “Nah two a those”.
11 “One’s getting down and I’ll, I’ll break down one of the other ones” so that “whatever happens with that one then there’s at least something there”.
am satisfied that the telephone conversations referred to above all referenced the impending meeting with Mr Logan, which gave rise to the concern on the part of both
Mr McLellan and Mr Bhikoo as to whether the cocaine would be ready in time. Had at least 28 grams of cocaine not been destined for Mr Logan, there would not have been the same need to rush to get it ready in the press for the later meeting with
Mr Logan.
[40] I am not satisfied, however, that the evidence proves beyond reasonable doubt that Mr Bhikoo was seeking a second 28 grams of cocaine for on-supply to Mr Logan; that the second 28 grams of cocaine was ready by Saturday evening; or that it was delivered to Mr Logan.
[41] In my view, while these matters are possible, it is also a reasonable possibility that Mr Logan only wanted 28 grams and/or a second 28 grams was not ready by the time of the meeting. I note in particular that, in the telephone call between Mr Bhikoo and Mr McLellan at 11.02am on 30 July 2016 (see [33] above), only one “block” of cocaine was referenced, in the context of getting “it” ready by the time of Mr Bhikoo’s meeting with Mr Logan. And as Mr McLellan noted in the 3.50 pm call on 30 July
2016, whatever happens with “that one” (which I infer to be a reference to the block being prepared and already in the press), there would be something for Mr Logan, given Mr McLellan’s indication he would “break down one of the other ones”. I do not infer that both were necessarily intended for Mr Logan, but rather if the one in the press was not ready, the other could be used to supply Mr Logan.
Conclusion
[42] Accordingly, in this judgment I have found:
(a) that on 27 May 2016, Mr Bhikoo supplied an unknown quantity of cocaine to PH; and
(b)that on 30 July 2016, Mr McLellan supplied Mr Bhikoo with 28 grams of cocaine for on-supply to Mr Logan, and Mr Bhikoo supplied
28 grams of cocaine to Mr Logan on that day.
[43] Sentencing of the defendants on this basis will take place on 22 November
2017 at 9 am.
S Fitzgerald J
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