R v Bowker

[2015] NZHC 2365

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-004-5509 [2015] NZHC 2365

THE QUEEN

v

NIGEL JOHN BOWKER

Hearing:	22 September 2015
Appearances:	R M McCoubrey for Crown G C Gotlieb for Defendant
Judgment:	29 September 2015

JUDGMENT OF M PETERS J

This judgment was delivered by Justice M Peters on 29 September 2015 at 12 pm pursuant to r 11.5 of the High Court Rules

Registrar/Deputy Registrar

Date: ...................................

Solicitors:           Meredith Connell, Crown Solicitor, Auckland

Counsel:            C G Gotlieb, Auckland

R v BOWKER [2015] NZHC 2365 [29 September 2015]

[1]      The Defendant, Mr Nigel Bowker, is one of several defendants prosecuted as part of Operation Genoa.   Operation Genoa involved substantial manufactures of methamphetamine.  The Police terminated the operation in May 2014 and many of the defendants charged pleaded guilty.

[2]      On  19  August  2015,  Mr  Bowker  pleaded  guilty  to  three  counts  of manufacturing methamphetamine, such manufactures having taken place in each of February, March and May 2014.1

[3]      Mr Bowker sought a sentence indication prior to entering his pleas and swore an affidavit in support dated 30 June 2015.  However, differences as to the extent of Mr Bowker’s involvement in the manufacture in March 2014 made it necessary to conduct a disputed facts hearing.  That hearing took place on 22 September 2015, during which Mr Bowker gave evidence.

[4]      Disputed  facts  hearings  are  governed  by  s 24  Sentencing  Act  2002. Section 24(2) requires the Crown to prove, beyond reasonable doubt, the existence of any disputed aggravating fact.  An aggravating fact is one that would justify a greater penalty.2   The Crown’s allegation of Mr Bowker’s greater involvement in the manufacture in March 2014 falls within this definition and, accordingly, is for the Crown to prove beyond reasonable doubt.

Trial of Mr David O’Carroll

[5]      I presided at the jury trial (“trial”) of two other defendants charged as part of Operation Genoa, one of whom was the Mr David O’Carroll referred to in the charges to which Mr Bowker has pleaded guilty.3

[6]      On  9  September 2015, Mr O’Carroll  was  found  guilty of manufacturing

methamphetamine in each of March, April and May 2014.  (There is no dispute that

Mr Bowker was in the South Island at the time of the April manufacture.)

1      Misuse of Drugs Act 1975, s 6(1)(b) and (2).

2      Sentencing Act 2002, s 24(3).

3      The notes of evidence at the trial were supplied to Mr Gotlieb as requested.

[7]      The evidence produced at the trial was such that I was able to form a clear view of Mr O’Carroll’s involvement (substantial) and that of Shannon Stevens – another defendant and also cited in the charges to which Mr Bowker has pleaded guilty.

[8]      The gist of the Crown case at the trial was that:

(a)      the manufactures from March 2014 onwards took place at a property in Rataroa Road, Miranda (“property”) connected with Mr O’Carroll;

(b)the Police discovered Mr O’Carroll and Mr Bowker manufacturing  at the property when they terminated the operation on 5 May 2014;

(c)      much or all of the equipment used to manufacture was stored in a large white trailer itself kept in a storage unit at Te Irirangi Drive under Mr Bowker’s control.   The Crown case was that the trailer would  be  driven  to  the  property  –  usually  by  Mr  Bowker  – manufacture would take place, and then the trailer would be returned to the unit a day or two later.  The evidence at trial included photos of (it is accepted) Mr Bowker towing the trailer with his ute, from and to the unit on or about the dates of manufacture, including on 11 and

14 March 2014.

[9]      Evidence at the trial included:

(a)      photos of Ms Stevens and her partner, Mr Shaw, entering and leaving storage units under their control, and of covert searches of those units;

(b)      surveillance evidence;

(c)       text messages and intercepted conversations;

(d)“polling data” showing  the  location  of  cell  phone towers  through which the protagonists’ cell phones transmitted at different times/places.

Disputed evidence

[10]     At the hearing before me, Mr Bowker’s evidence was that his role in the February and March manufactures was limited to driving the trailer to and from the property.  Mr O’Carroll paid him in drugs and that payment reflected the level of his involvement.  The position changed with the May manufacture as, when Mr Bowker arrived at the property (on 4 May 2014), Mr O’Carroll said that he, Mr Bowker, might as well stay and help.  Hence Mr Bowker’s presence and participation when the Police arrived.

[11]     Specifically, as regards the March 2014 manufacture, Mr Bowker’s evidence

was:

(a)      Mr O’Carroll and Ms Stevens were waiting for him when he arrived home on the afternoon of 11 March 2014;

(b)      Mr O’Carroll told Mr Bowker that he was to drive the trailer to the

property that evening; (c)         Mr Bowker did so;

(d)Mr O’Carroll was angry (and not to be argued with) when Mr Bowker arrived at the property, complaining that Mr Bowker was late, and was so impatient that he stopped Mr Bowker unhooking the trailer from his ute but rather sent Mr Bowker on his way in Mr O’Carroll’s own ute.  Mr Bowker left his cellphone in his ute;

(e)      Mr O’Carroll extracted an assurance that Mr Bowker would return the next day – 12 March 2014 – to finish work on some fences he was building;

(f)      Mr Bowker returned the next day, retrieved his cellphone, worked on the  fences  as  promised,  and  returned  the  trailer  to  the  unit  on

14 March 2014.

[12]     In support of his request for a sentence indication, Mr Bowker swore an affidavit dated 30 June 2015.  There is no dispute that Mr Bowker did not disclose the extent of his participation in that affidavit. The relevant paragraphs are:4

13.One of my charges concerns methamphetamine manufactures which took place on 28th February 2014 and 12th March 2014.  I did not have direct knowledge that these manufactures were to take place however I accept that I indirectly assisted in the facilitation of these offences  by allowing Mr O’Carroll  use  of  my storage  unit.   As above, I had  my suspicions at the time that [Mr] O’Carroll and others were manufacturing methamphetamine and I deliberately did not ask questions about the items being stored in my trailer.

...

15.On  12th  March  2014,  I  was  working  at  16  Arkley  Avenue, Farmcove. Attached at TAB B is the invoice relating to this job.

[13]     As I have said, there is no dispute that this evidence falls well short of an honest account.  First, Mr Bowker said in evidence that he did know Mr O’Carroll and others were manufacturing.5   Accordingly, he did more than harbour suspicions. Secondly, Mr Bowker was not just making his unit available.  He was driving the trailer.

[14]     Mr Bowker’s explanation for these errors was that he had spent the last

18 months “looking forward” as part of his rehabilitation and that he thought these paragraphs  accurate  at  the  time  the  affidavit  was  sworn.    I do  not  accept  that evidence.  Mr Bowker could not possibly have forgotten that he drove the trailer to and from the property.

[15]     As for [15] of the affidavit, the polling data places Mr Bowker at the property on 12 March 2014.   Crown counsel put it to Mr Bowker that he stayed at the property  overnight  on  11  March  2014,  and  that  his  evidence  that  he  left  in Mr O’Carroll’s ute, left his cellphone behind and returned to work on fences at the property was an invention designed to meet the polling data.

[16]     I might be willing to give Mr Bowker the benefit of the doubt as to [15] of his affidavit, but there can be no such explanation for [13] of his affidavit.

4      Affidavit of N J Bowker sworn 30 June 2015 at [13] and [15].

5      Notes of Evidence dated 22 September 2015, at 7.

Decision

[17]     In reaching a decision, I am able to take into account the evidence at trial and, having done so, I am satisfied that Mr Bowker did participate in the March 2014 manufacture.

[18]     Mr Bowker’s  cellphone  “polled”  at  the  cellphone  tower  closest  to  the

property at  10.45 pm on 11 March 2014  and  between 9.41  am to 5.14 pm on

12 March 2014.  Accordingly, and as he now acknowledges, Mr Bowker was at the property on 12 March 2014, whether or not he returned home on the evening of

11 March 2014.

[19]     Ms Stevens was also at the property for most of 12 March 2014.  She was observed near the property at 10.19 am and her cellphone polled at the same tower throughout the day.   Likewise Mr O’Carroll’s.    Later that day,  Ms Stevens and Mr Shaw placed a chilly bin in one of their units.  A subsequent search of the unit revealed that the bin contained some 830 grams of methamphetamine.

[20]     Given these matters, it is inconceivable to me that Mr Bowker was at the property   working   on   fences   whilst   Mr   O’Carroll   and   Ms   Stevens   were manufacturing  methamphetamine.    I  am  satisfied  beyond  reasonable  doubt  that Mr Bowker was at the property because he was participating in the manufacture and I find accordingly.

Conclusion

[21]     Sentencing is to take place at 9 am, 13 November 2015.

[22]     Mr Gotlieb sought a continuation of bail on the basis that, although a prison sentence is inevitable, Mr Bowker has not breached bail and has family reasons for wishing to remain on bail pending sentence.  The Crown did not oppose bail and in those circumstances I permitted it to continue on existing terms and conditions.

..................................................................

M Peters J