R v Collins
[2009] NZCA 388
•4 September 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA643/2008
CA157/2009
[2009] NZCA 388THE QUEEN
v
RICHARD DONALD COLLINS
Hearing:30 July 2009
Court:Baragwanath, Venning and Winkelmann JJ
Counsel:M W Ryan for Appellant
M A Woolford for Crown
Judgment:4 September 2009 at 12.30pm
JUDGMENT OF THE COURT
AThe appeal against conviction and sentence on count 30 of the amended indictment presented 10 November 2008 (cultivation of cannabis at Ridge Road) is allowed and the conviction and sentence are set aside.
B In all other respects the appeals against conviction and sentence are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Baragwanath J)
Table of Contents
Para No
(I) 8 JUNE 2004 – RUPEKE PLACE, HENDERSON, AUCKLAND [2]
(II) 25 FEBRUARY 2005 – RUPEKE PLACE [4]
(III) 3 AUGUST 2005 – WEST COAST ROAD, GLEN EDEN [7]
(IV) 8 MAY 2007 – RIDGE ROAD, COATSVILLE [10]
THE CONVICTIONS [11]
GROUNDS OF APPEAL [12]
GROUND (A): THE WEST COAST ROAD SEARCH AND S 61 OF THE ARMS ACT [13]Discussion [16]
GROUND (B): THE SEARCH IN THE RIDGE ROAD PROPERTY ON 8 MAY 2007
was performed without a warrant and the evidence obtained
during that search should have been ruled inadmissible [29]GROUND (C): THE COUNTS FROM THE FOUR EPISODES SHOULD HAVE BEEN
tried at separate trials [36]
GROUND (D): THE VIDEOTAPED INTERVIEW OF THE APPELLANT USED TO
sustain the cannabis charges should not have been admitted [37]
GROUND (E): THE TRIAL JUDGE’S REFUSAL TO DISCHARGE A JUROR WHO
COMPLAINED OF BEING UNWELL [45]Ground (f): Hugh Williams J’s refusal to adjourn the trial [47]
Sentence [48]
Decision [57][1] Richard Donald Collins appeals against convictions and sentences to an effective fifteen years six months with a minimum term of nine years resulting principally from four episodes of alleged manufacture of methamphetamine. In the following chronology those episodes are highlighted.
(i) 8 June 2004 - Rupeke Place, Henderson, Auckland
[2] On 8 June 2004 the police were called to warehouse premises in Rupeke Place following an explosion which had partly blown out an upper floor window. A clandestine methamphetamine laboratory was found in an upstairs bedroom occupied by the appellant who was not then located.
[3] On 14 June 2004 the appellant was interviewed by the police in the presence of his solicitor. A subsequent Institute of Environmental Science and Research Ltd (ESR) report evidencing the presence of methamphetamine had not then been completed.
(ii)25 February 2005 - Rupeke Place
[4] On execution of a search warrant on 25 February 2005 at the same Rupeke Place address police again found a clandestine methamphetamine manufacturing laboratory together with a rifle concealed in a sofa and live rounds of ammunition. Again the appellant was not found, but he remained in occupation of the premises.
[5] On 7 March 2005 the appellant pleaded guilty to two charges of cultivating cannabis in January and March 2004, which are unrelated to this appeal, and was sentenced to community work.
[6] Following the appellant’s breach of community service orders, a warrant was issued for his arrest.
(iii) 3 August 2005 - West Coast Road, Glen Eden
[7] On 3 August 2005 the appellant was living in a warehouse building at West Coast Road, Glen Eden. Yet again there was located a clandestine methamphetamine laboratory, in a bedroom which he occupied. The police also found a large quantity of live ammunition. There were as well a large number of motor vehicles, motorcycles and other items, a number of which had been stolen. The appellant was later convicted of receiving a Land Rover motor vehicle, a Holden Kingswood utility and a set of aluminium vehicle ramps.
[8] The appellant was charged with firearms offences relating to the search on 25 February 2005 and with the manufacture of methamphetamine on the same date. He was later charged with manufacture of methamphetamine relating to the events of 8 June 2004. He was granted bail.
[9] On 18 May 2006 the appellant was arrested but he escaped from custody.
(iv) 8 May 2007 - Ridge Road, Coatsville
[10] The police executed a warrant for the appellant’s arrest at a property at Ridge Road, Coatsville, where he was living with his sister and her partner. They arrested him and performed a search. They found the fourth operating clandestine methamphetamine laboratory, with a hot plate in operation heating two reaction vessels for the production of methamphetamine. The police found as well a back pack containing $39,000. They further found in the appellant’s bedroom two sawn-off shotguns, two boxes of shotgun cartridges, a number of loose shotgun cartridges and what was described as an improvised explosive device under his bed.
The convictions
[11] The appellant was convicted on 12 December 2008 of:
(a) four counts of manufacturing methamphetamine;
(b) two counts of possession of methamphetamine for supply;
(c) one representative count of supplying methamphetamine;
(d) four counts of possession of equipment for manufacture;
(e) four counts of possession of materials for manufacture;
(f) four counts of possession of precursor substances;
(g) one count of cultivating cannabis;
(h) four counts of receiving stolen property;
(i) two counts of possession of firearms;
(j) four counts of possession of explosives;
(k) one count of escaping custody.
Grounds of appeal
[12] There was no challenge to the Rupeke Place searches on 8 June 2004 and 25 February 2005. The challenges were:
(a)to the search of West Coast Road on 3 August 2005 in reliance on written authorisation by commissioned officer of police under s 61 of the Arms Act 1983;
(b)to the admission under s 30(2) of the Evidence Act 2006 of evidence obtained from the search of the Ridge Road property on 8 May 2007, performed without a warrant and which Keane J found followed an initial unlawful entry;
(c)that the counts from the four episodes should have been tried at separate trials;
(d)to the admission of the videotaped interview of the appellant used to sustain cannabis charges;
(e)to the trial Judge’s refusal to discharge a juror who complained of being unwell;
(f)to the decision of Hugh Williams J to decline the appellant’s application for adjournment pending resolution of his pre-trial appeal;
(g)as to sentence.
Ground (a): the West Coast Road search and s 61 of the Arms Act
[13] We emphasise the relevant parts of s 61 of the Arms Act:
61 Search of land or buildings for firearms, airguns, pistols, imitation firearms, restricted weapons, ammunition, or explosives
(1) If any commissioned officer of Police has reason to suspect that there is in any building, aircraft, vessel, hovercraft, carriage, vehicle, premises, or place any firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive in respect of which any offence against this Act or any indictable offence has been or is about to be committed or which may be evidence of any such offence, the commissioned officer, or any member or members of the Police authorised by him in writing, may—
(a) Enter any such building, aircraft, vessel, hovercraft, carriage, vehicle, premises, or place, by force if necessary, and either by day or night, and search the same or any part thereof; and
(b) Seize any firearm, airgun, pistol, imitation firearm, restricted weapon, ammunition, or explosive found therein and detain the same.
(2) It is the duty of everyone exercising any power conferred by subsection (1) of this section—
(a) To identify himself to the occupant of the premises searched; and
(b) To tell the occupant of the premises searched that the search is being made pursuant to subsection (1) of this section; and
(c) If he is not in uniform, to produce on initial entry, and, if requested, at any subsequent time, evidence that he is a member of the Police.
(3) Where any member of the Police exercises any power conferred by subsection (1) of this section, he shall, within 3 days after the day on which he exercises the power, furnish to the Commissioner a written report on the exercise of the power and the circumstances in which it came to be exercised.
[14] The appellant did not possess a firearms licence. The legality of the search on 3 August 2005 was upheld in separate pre-trial rulings of the High Court relating to other occupants (R v Dunn (No 6) HC AK CRI 2006-404-005581 17 April 2008) and also in the present case: HC AK CRI 2007-044-3210 25 September 2008. Notice of appeal was given against the latter decision but the appeal was not heard prior to the trial before Wylie J, where the evidence was admitted. The point is now advanced on the appeal against conviction under s 385 of the Crimes Act 1961.
[15] Counsel for the appellant Mr Ryan submitted:
(a)The conditions for exercise of the search power under s 61 on 3 August 2005 were not satisfied.
(b)When the police planned to execute a warrant to arrest that was issued on 2 June 2005, alleging breach of community work under the sentence imposed on 7 March 2005 for cultivation of cannabis, they had sufficient information to obtain from a judicial officer or Registrar a search warrant pursuant to s 198 of the Summary Proceedings Act 1957 and as a result they should not have resorted to the Arms Act.
(c)The police were aware from the two searches of Rupeke Place that there was a risk of presence both of a clandestine methamphetamine laboratory and of firearms. On 28 July 2005, nearly a week prior to the episode on 3 August 2005, Senior Constable Hynes had gone to the West Coast Road property and recovered a Land Rover bearing a false plate. It had been stolen in a burglary on 6 March 2005 and had been seen immediately after the burglary some 300 metres away the West Coast Road property. Also found that day was a Holden Commodore with a false plate which had been stolen from South Auckland on 3 June 2005. The true registration plates of the vehicles were not found.
(d)The police knew that the appellant was at the address. They had evidence of offending involving drugs and firearms in which he was believed to be implicated. There was evidence of stolen property at the premises, at the least a warrant to search stolen property could and should have been sought and there was no occasion to resort to s 61.
(e)The only lawful authority of the police to enter West Coast Road was to execute the warrant to arrest the appellant, but in the event he was arrested outside the premises. Section 61, under which the police claimed to act, is an emergency power, and its conditions were not satisfied. The police ought to have obtained a search warrant under s 198 of the Summary Proceedings Act and in the absence of such a warrant the subsequent entry was accordingly unlawful.
Discussion
[16] We reiterate that s 61 empowers a commissioned officer of police, or any member of the police authorised by him in writing, who has reason to suspect that there is in any building any firearm in respect of which any offence against the Arms Act has been committed, to enter the building, by force if necessary, and search it and seize and detain any firearm found therein.
[17] In the Hansard debate on the Arms Bill ((8 September 1993) 452 NZPD 2277) the Hon Paul East stated:
The powers of entry contained in clause 60 [dealing with search of persons] and clause 61 [now ss 60 and 61] deserve the wholehearted support of the House, because they are a careful attempt to balance the rights of a home owner and the rights of the individual, as well as taking into consideration the need to protect the public… Although there are restrictions they enable the police in cases of emergency to take action without the need to obtain a warrant. Within three days of such action being taken a full written report must be given to the Commissioner of police. That worth-while balance should be approved by the House.
(Emphasis added)
[18] The Bill was based on the 17th report of the Public and Administrative Law Reform Committee Statutory Powers of Entry (Report April 1983). At [1.8] of the report, the Committee stated:
It has become clear from a study of the statutory provisions that powers of entry are provided for five main purposes:
· emergency situations;
· detection of criminal offences;
· promotion of public welfare;
· routine inspections to ensure compliance with legislation;
· surveillance of licensed activities.
At [1.12] the Committee confirmed:
(a)A power enabling officials to enter private property must be essential to achieve a purpose of the Act and
(b)The grounds for an entry should be objective not subjective’
(c)Where entry is to be into a dwellinghouse, it should be authorised by a warrant from a judicial officer by written application on oath.
At [3.12] the Committee stated:
Where entry is required for the purpose of ascertaining whether an offence has been committed, the official should obtain a warrant from a judicial officer by written application on oath.
At [3.13] it stated:
A power to enter for such a purpose without warrant should be conferred only when an overriding public interest demands such power and should be accompanied by stringent safeguards such as an authorisation by a senior officer in the relevant department and reporting to a senior officer.
At [3.7] the Committee stated:
Where entry is to be into a dwellinghouse, it should be authorised by a warrant from a judicial officer by written application on oath.
It then observed that it is appropriate to acquire a warrant before entry into a dwellinghouse in cases where a warrant would not be necessary for other premises:
Parliament has recognised the special position of dwellinghouses in this way in many statutes. There is a need for particularly careful scrutiny to ensure that sufficient justification exists for intruding upon domestic privacy and that is why we consider that a judicial warrant should have to be obtained in this case.
[19] The legislation was considered by this Court in Dunlea v The Attorney-General [2000] 3 NZLR 136:
[15] The Arms Act, according to its long title, is an Act to promote both the safe use and the control of firearms and other weapons. It establishes various licensing systems and creates certain offences in support of those aims. It also confers important and unusual powers on the police and supplements those powers with a broad protection against legal proceedings. Those powers, exercisable in public places and in other places under s 60 and inside buildings under s 61, have two notable features. The first is that the powers are not subject to the check in advance provided by the requirement to seek from, and have a search warrant granted by, a judicial officer. In the category of case falling within s 61 it is a commissioned officer who gives the written authority. The second is that the powers conferred are preventive – to search, to detain (not arrest) the person for the purposes of the search, and to seize and detain the firearm.
[16] Parliament has not simply conferred important powers exercisable on an urgent basis to help prevent the dangerous or illegal use of firearms. It has also, in s 71, provided a broad protection to those operating in this area. The protection:
• extends to a wide range of proceedings (on its face it does not appear to be limited, for instance, to actions in tort);
• extends to a wide range of potential defendants including the person who took the action and those most likely to be vicariously liable;
• extends to the intended execution of the Act and not simply to its actual execution; and
• makes provision for a sole exception, perhaps implying that there are no others.
(The provision can be seen in context in the Law Commission's report on Crown Liability and Judicial Immunity: A response to Baigent's case and Harvey v Derrick ((1997) NZLC R37) app C.)
[20] The law places a high value on the related interests of dignity and privacy. In R v Williams [2007] 3 NZLR 207 at [113] this Court stated that “residential property will have the highest expectation of privacy attached to it.”
The New Zealand Bill of Rights Act 1990 states:
21 Unreasonable search and seizure
Everyone has the right to be secure against unreasonable search or seizure, whether of the person, property, or correspondence or otherwise.
The common law is no less solicitous. So in Secretary for State for the Home Department v GG [2009] EWCA Civ 786 the Court of Appeal dismissed an appeal against the decision to remove from a control order made under the Prevention of Terrorism Act 2005 (UK) a provision requiring GG to submit to any search of his person which might be required to assist the monitoring of other requirements of the control order. The judgment contains a useful account of appellate authority on the principle that general language will be presumed insufficient warrant to override privacy rights; clear language is required. It is observed at [33] that the principle extends back to at least Stradling v Morgan (1560) 1 Pl 1999; 75 ER 305.
[21] That is why in R v Laugalis (1993) 10 CRNZ 350 this Court held that the power of search without warrant conferred by s 18(2) of the Misuse of Drugs Act 1975 was exercisable only if there was justification for not applying to the District Court for a warrant under s 198 of the Summary Proceedings Act.
[22] Section 198, in common with s 18 (2), however, imposes the strict standard of reasonable grounds for belief which, as discussed in R v Karalus (2005) 21 CRNZ 728 at [27] (CA), provides a much higher test than that of “reason to suspect” adopted by s 61(1) of the Arms Act. Like any statutory power, s 61 must be exercised reasonably. While the point is not before us, an officer who could readily secure a search warrant could well face the same result as in Laugalis if an attempt were made to resort to s 61.
[23] It was ultimately conceded by Mr Ryan both that there were reasonable grounds for suspicion that Mr Collins would have arms and/or drugs at West Coast Road and that the evidence of his previous drugs and arms at Rupeke Place did not meet the standard of reasonable grounds for belief required by s 198 for a search warrant in respect of such items at West Coast Road. He submitted, however, that the evidence of what had occurred the previous week provided reasonable grounds for belief that there would be stolen property present at least in the form of the missing number plates.
[24] We do not accept the submission. We are not satisfied that there were reasonable grounds for belief in respect of stolen property. The fact that the plates were missing from the stolen vehicles retrieved the previous week does not meet the standard of reasonable grounds for belief that the plates would be in the premises.
[25] But even if there were the ability to secure a warrant in respect of dishonestly obtained goods, this can afford no bar to the use of s 61 in respect of firearms. There could be questions of resources and proportionality that would lead police to refrain from seeking a warrant in respect of stolen property. Unlawful firearms are another matter.
[26] New Zealand sees firearms in a very different light from the United States: compare District of Columbia v Heller 128 S Ct 2783 (2008). That is why Parliament has in s 61(1) selected the relatively low threshold of “reason to suspect” for the police to have authority to make forcible entry to seize a firearm. Like Class A drugs, firearms present grave danger to public safety and, all too often, an immediate risk to the lives of police officers and innocent bystanders. The point is made by the Law Commission in its recent report Search and Surveillance Powers (NZLC R97 2007) at [5.67]:
We accept that, consistent with the public safety rationale for the existence of the Arms Act powers, it is most unlikely to be practicable for a warrant to be obtained before the power of entry and search can or should be exercised… .
The Search and Surveillance Bill at present before Parliament would empower a search of any place without warrant by any constable who has reasonable grounds to suspect an offence against the Arms Act has been committed.
[27] That the police in this case took the precaution of engaging the Armed Offenders Squad and having an ambulance and fire engine on hand is no basis for a conclusion that the evidence exceeded the suspicion standard. It is wholly consistent with reasonable grounds of suspicion, as distinct from belief, accompanied by responsible caution when performing the public responsibility of executing the outstanding warrant against a man with a record of association with weapons and hard drugs. Indeed their suspicions were borne out by the appellant’s possession of equipment for manufacturing methamphetamine, a quantity of that drug and explosives as well as a quantity of stolen property.
[28] Mr Ryan challenged the entry into the premises when the appellant was arrested in the street outside. But the use by the police of their s 61 authority to enter the premises was wholly justifiable. There was evidence that the appellant had gang associates. It was legally appropriate, as well as courageous, for the officers to enter premises which proved to present physical risk not only of dangerous chemicals but of the explosives which for all they knew might be accompanied by firearms in other hands. The first challenge fails.
Ground (b): the search in the Ridge Road property on 8 May 2007 was performed without a warrant and the evidence obtained during that search should have been ruled inadmissible
[29] On this occasion the appellant was again arrested outside the property and the police search of the premises followed.
[30] Keane J considered that the police might have acted unlawfully and found it necessary to consider s 30(5) of the Evidence Act as to balancing considerations in relation to the judgment whether evidence obtained unlawfully during that search should be admitted. He exercised his judgment in favour of the Crown.
[31] We see no error in his approach. The significant point is that, before the police made their entry, the appellant made vital admissions to the police about what was inside. After the occupants of the building were out and through a decontamination process, Constable Hawke cautioned the appellant. The transcript recorded Crown counsel’s questions and the officer’s answers about a conversation while the appellant was seated in a police car:
Q What did you ask him about?
A I said, “Is there a lab in the house”.
Q A specific kind of lab or just a lab?
A Yes, just “Is there a lab in the house?”Q And his answer?
A He said, “It’s not in the house”.I said, “Where is it?”
He said, “ In the garage”.
I said, “And are you responsible for that?”
Mr Collins nodded his head in agreement.
I said, “What garage is it in?”
He said, “The big one. Nothing anywhere else”.
I said, “And who has been doing the bake or manufacture?”
He said, “Me”.
I said, “How ‘bout these other guys?”
He said, “Nah”.
I said, “How long has the lab been running?”
He said, “Not long”.
I said, “Whose place is this?”
Mr Collins didn’t reply to that question.
[32] The admission that there was a lab in the garage and the appellant was “doing the bake” satisfied the conditions of s 18(2) of the Misuse of Drugs Act:
18 Search and seizure
…
(2) Where any member of the Police has reasonable ground for believing that there is in or on any building,… premises, or place any controlled drug … and that an offence against this Act has been or is suspected of having been committed in respect of that drug… he, and any assistants who accompany him, may enter and search the building,… premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957…
[33] The expression “building, … premises, or place” is amply wide enough to embrace both the garage and the other building at the Ridge Road property. In those circumstances, the police had every right to exercise the power under s 18(2) to enter the premises as they did.
[34] Mr Ryan submitted that the police officers did not in fact go through the intellectual process of considering the application of s 18(2) and so are not able to take advantage of its authority.
[35] But under s 385 of the Crimes Act the test for intervention by this Court is “wrong” or “miscarriage of justice”. Given the appellant’s admissions it was inevitable that the premises would be searched. There was no infringement of the values which underlie the statutory and common law rights to privacy and protection of dignity. Because the police had the right to search, the fact that they did not go through the process of deciding to exercise the right is irrelevant. The exercise by the Judge of the discretion under s 30 in favour of the Crown was inevitable.
Ground (c): the counts from the four episodes should have been tried at separate trials
[36] This point is without merit. There could be no clearer case for exercise of the power under s 140 of the Crimes Act to join the counts in a single indictment. In terms of s 43 of the Evidence Act the evidence on each manufacturing count tended to demonstrate a propensity for such offending; there are no pointers to any unfairly prejudicial effect of such course.
Ground (d): the videotaped interview of the appellant used to sustain the cannabis charges should not have been admitted
[37] At 8:38 am on 8 May 2007 at the North Shore Police Station the appellant asked to speak to his lawyer. But at 9:02 am Constable Hawke sought to continue to interview him on video at the North Shore Policing Centre. He advised the appellant:
You have the right to consult and instruct a lawyer without delay and in private and you have the right to refrain from making any statement. Do you understand all your rights?
The appellant replied:
I understand what you’ve said you know I’ve asked to see a lawyer.
The officer responded:
Yeah um and we’ll call a lawyer um I’ve just asked you to go on video just to clarify what you’ve said about what we’ve found at the address.
He then continued the interview without calling the lawyer twice requested by the appellant. In the course of the interview the appellant was asked about topics which were outside the scope of what he had earlier said, including the presence of hydroponic cannabis.
[38] Other occupants of the premises were also convicted of cultivation of the cannabis which was not in an area shown to be in the particular occupation of the appellant. The appellant’s conviction on count 30, of being party with them to the cultivation count, depended on the admissibility of the challenged statement.
[39] Keane J correctly directed himself in terms of R v Harder (2004) 21 CRNZ 255 (CA) that care needs always to be taken about whether there has been a true waiver; that it must be conscious, free, unequivocal and not lightly inferred. He found that the appellant had waived his right to legal advice.
[40] We are respectfully of a different opinion. The Evidence Act states that evidence is improperly obtained if it is obtained unfairly (s 30(5)(c)) and that in deciding whether that has occurred a Judge must take into account guidelines issued by the Chief Justice (s 30(6)).
[41] Such guidelines were issued in Practice Note – Police Questioning (s 30(6) of the Evidence Act 2006) [2007] 3 NZLR 297. They include the following:
The Courts will continue to apply judicially developed guidelines for police questioning. The former Judges’ Rules are (with some developments) restated here for the purposes of s 30(6) of the Evidence Act 2006. The obligation to advise that legal advice may be available without charge under the Police Detention Legal Assistance Scheme is new. As well the advice requirements under s 23 of the New Zealand Bill of Rights Act 1990 are brought into the required caution... The guidelines in this practice note supplement enactments relevant to police questioning and must be read consistently with those enactments. In particular, they do not affect the rights and obligations under the New Zealand Bill of Rights Act. The practice note takes effect on the commencement of s 30 of the Evidence Act.
(1) A member of the police investigating an offence may ask questions of any person from whom it is thought that useful information may be obtained, whether or not that person is a suspect, but must not suggest that it is compulsory for the person questioned to answer.
(2) Whenever a member of the police has sufficient evidence to charge a person with an offence, or whenever a member of the police seeks to question a person in custody, the person must be cautioned before being invited to make a statement or answer questions. The caution to be given is:
(a) that the person has the right to refrain from making any statement and to remain silent;
(b) that the person has the right to consult and instruct a lawyer without delay and in private before deciding whether to answer questions and that such right may be exercised without charge under the Police Detention Legal Assistance Scheme;
(c) that anything said by the person will be recorded and may be given in evidence.
[42] That modern Practice Note did not intend the caution to be a ritual incantation, to be uttered and then ignored. Rather it is an important procedure designed to alert the interviewee of the constitutional right to silence, recognised both at common law and under ss 23(4) and 25(d) of the New Zealand Bill of Rights Act, and of the supplementary right endorsed by s 23(1)(b) to consult and instruct a lawyer without delay.
[43] We find it unnecessary to discuss the jurisprudence recounted by Amelia Evans in her essay “Breaking the Silence: an Analysis of Police Questioning Under Section 23(4) of the New Zealand Bill of Rights Act 1990” (2008) 6 NZJPIL 43. We are satisfied that the statement resulted not from a waiver of rights by the appellant but from the interviewing officer’s determination to proceed without regard to the appellant’s repeated claim to exercise his rights. The evidence was improperly obtained and in terms of s 30(2)(b) of the Evidence Act the public interest favours its exclusion.
[44] It follows that the conviction and sentence on count 30 of the amended indictment are set aside.
Ground (e): the trial Judge’s refusal to discharge a juror who complained of being unwell
[45] The trial Judge prepared a careful note of a discussion with a member of the jury who at 8:30 pm the previous evening had told the Registrar that she was on medication. It was because of chronic pain which included cluster headaches. Interviewed by the Judge, she reported that despite having a bad morning “I’m fine during the day…The one that affects my mental capacity are the ones at night. And it doesn’t affect it, it just helps me relax.” She expressed confidence in her ability to make a full contribution.
[46] An affidavit from a pharmacist stated that the drug, clonazepam, taken twice daily could affect concentration and cause memory loss. But there is no evidence that it had such consequences for this juror. There had been no occasion when counsel noticed the kind of tendency to drowse that in other cases has caused the judge to intervene and, on some occasions, to discharge the juror. The point fails.
Ground (f): Hugh Williams J’s refusal to adjourn the trial
[47] The application for adjournment was to allow this Court to consider various grounds argued before us. Since, apart from the single cannabis count, which can have made no difference to any other, all grounds of appeal have failed, there is nothing in the argument.
Sentence
[48] The effective term of fifteen years six months with a minimum term of nine years resulted from the Judge’s adoption of an eleven year starting point for count twelve of the amended indictment (manufacture of methamphetamine at Glen Eden). He identified as aggravating factors the substantial revenue the manufacture would have produced, the repeated nature of the manufacturing (four different labs at three different locations over three years), the finding of firearms and/or ammunition at three of those sites, the finding of commercial quantities of cannabis at both West Coast Road and Ridge Road, convictions for possession of equipment, materials and precursor substances in respect of each lab, and the receiving of stolen property. He added four years to recognise those factors. He added a further one year because the West Coast Road offending occurred while the appellant was on bail. He made a six month deduction for the 24 hour curfew while the appellant was on bail for some 12 months.
[49] On other counts he imposed the following concurrent sentences of imprisonment:
(a) the other three manufacturing counts, six years on each count;
(b) possession of methamphetamine for supply, five years on each;
(c) supplying methamphetamine, five years;
(d)possession of equipment for manufacture of methamphetamine, three years on each;
(e) possession of materials for manufacture, three years on each;
(f) possession of precursor substances, three years on each;
(g) cultivating cannabis, twelve months;
(h) receiving stolen property, two years on each;
(i) possession of firearms, two years on each;
(j) possession of explosives, eighteen months on each;
(k) escaping custody, eighteen months.
[50] The appellant submitted that certain aggravating factors had already been taken into account in setting the starting point and that the uplift of four years was excessive.
[51] We agree that the factor of substantial revenue was probably inherent in the 11 year term. Further the conviction for cultivating cannabis must be removed from consideration. But we are satisfied that the total sentence was not excessive for such grave and sustained offending.
[52] Parliament has provided a maximum term of life imprisonment for manufacture of methamphetamine. The appellant has displayed a determination to continue with such offending – at three sites and over four distinct periods. In R v Fatu [2006] 2 NZLR 72 this Court stated:
[22] All other things being equal, a manufacturer is more culpable than an importer and an importer is more culpable than a supplier. A drug manufacturer (or importer for that matter) is responsible for bringing the drugs in question into circulation in New Zealand and will usually be more culpable than a dealer in drugs. … Another way of looking at it is that a drug manufacturer or importer can be regarded, at least normally, as being at the top of the supply chain… .
[23] We see the culpability of the manufacturer as being greater than that of the importer, given the dangers associated with the manufacturing process. These dangers are set out in the advice that the Expert Advisory Committee on Drugs (EACD) gave to the Minister of Health in 2002. In that report, the committee noted that several different chemical processes could be used to manufacture methamphetamine. Regardless of the process used, the chemicals involved are generally highly flammable, corrosive, explosive or toxic (EACD Advice to the Minister on Methamphetamine (2002) at p 13).
[24] The committee went on to observe:
While these are hazardous substances in isolation, the combination of chemicals or the heating of the substance over an open flame can be extremely dangerous. Thus the risk of explosion, chemical burns or poisoning associated with the domestic manufacture of methamphetamine is high. It is notable that 20 – 30 percent of methamphetamine laboratories are only discovered as a result of fires and explosions (Skeers 1992).
[25] The committee noted that the danger was a significant issue for law enforcement officials and emergency service personnel, particularly as international experience indicated that exposure can be reasonably frequent and have serious health consequences. The committee also noted that the public can also be exposed to risks due to the establishment of clandestine laboratories in New Zealand communities. That risk can be intensified if manufacturers shift to smaller or portable operations to avoid detection. Further, the health hazards associated with clandestine methamphetamine laboratories are not limited to the immediate period of manufacture. The building containing the laboratory can be contaminated for some time after the completion of the manufacturing procedure due to the leaching effect of many of the chemicals and gases involved in the manufacturing process.
[53] These considerations were illustrated by the very first episode in the present case. Yet the appellant persisted. The Court went on to state:
[43] … [W]e consider that appropriate sentencing bands for those who are the primary offenders in methamphetamine manufacturing operations should be based on uplifts of 10 per cent – 20 per cent on those applicable in the case of importers:
….
(b) Band two – manufacturing up to 250 g – four years’ to 11 years’ imprisonment.
(c) Band three – manufacturing large commercial quantities (250 g to 500 g) – ten years’ to 15 years’ imprisonment.
(d) Band four – manufacturing very large commercial quantities (500 g or more) – 13 years’ to life imprisonment.
The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question.
[54] But these bands are for a single conviction. They do not reflect the enhanced public interest in incapacitating a recidivist offender, accentuated in this case by the presence of firearms and explosives (in the form of live ammunition and the improvised explosive device). Section 84 of the Sentencing Act 2002 states:
Guidance on use of cumulative and concurrent sentences of imprisonment
(1) Cumulative sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are different in kind, whether or not they are a connected series of offences.
(2) Concurrent sentences of imprisonment are generally appropriate if the offences for which an offender is being sentenced are of a similar kind and are a connected series of offences.
(3) In determining for the purpose of this section whether 2 or more offences committed by 1 offender are a connected series of offences, the court may consider—
(a) the time at which they occurred; or
(b) the overall nature of the offending; or
(c) any other relationship between the offences that the court considers relevant.
[55] The four quite distinct episodes of offending in this case called for cumulative, not concurrent sentences. In the absence of a Crown submission to the contrary, we do not exercise jurisdiction to increase the appellant’s sentence. But we regard the effective sentence as distinctly light for such offending.
[56] Section 86 of the Sentencing Act 2002 states that the purposes of a minimum term include denouncing the conduct, deterring the offender from committing such offences and protection of the community from him. The recidivist offending brings the appellant within each of these purposes. Such authorities as R v Anslow CA182/05 18 November 2005 and R v Aram [2007] NZCA 328 apply with stronger force in such cases. The imposition of a minimum term was inevitable. Its nine year length is in our opinion the least that could be justified for such offending. For that reason we make no adjustment for the concurrent sentence which we have quashed.
Decision
[57] It follows that, subject to [44], the appeal against both conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington
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