R v Dixon HC Rot CRI 2007-070-1798

[2008] NZHC 2292

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

CRI 2007-070-1798

THE QUEEN

v

SEAN VICTOR DIXON

Hearing:         30 April 2008

Appearances: H Wrigley for the Crown

W T Nabney for the Prisoner

Judgment:      30 April 2008

ORAL PROOF OF FACTS JUDGMENT OF PRIESTLEY J

Counsel/Solicitors:

H A Wrigley, Crown Solicitors, P O Box 13063, Tauranga

W T Nabney, P O Box 13007, Tauranga

R V DIXON HC ROT CRI 2007-070-1798  30 April 2008

Introduction

[1]      This is a proof of facts hearing under s 24(2) of the Sentencing Act 2002.

[2]      The essential dispute is whether details given by the prisoner to Detective Constable Lemoto on 15 March 2007, both in a police vehicle and in a formal video interview, were correct, or whether instead the version given by the prisoner on oath, which downplays to a considerable extent his involvement in manufacturing methamphetamine, is to be preferred.

[3]      In essence the distinction between the two versions is whether the prisoner from time to time manufactured methamphetamine in his home, or whether instead he did little more than aid a Mr Darryl Crawford who was the primary party.

Background

[4]      The prisoner was to face trial today on an indictment of five counts.  The trial would have occupied two days.  On arraignment this morning he pleaded guilty.  He is to be sentenced in this Court on 20 June 2008.

[5]     The count relevant to this hearing is that the prisoner manufactured methamphetamine at Mt Maunganui between 1 January and 15 March 2007.  There is also a count relating to the sale of methamphetamine during the same period.  The other three counts relate to possession of various precursor substances, chemicals, and equipment, all of which are notoriously involved in the methamphetamine manufacturing process.

[6]      The prisoner’s home at 62 Pitau Road, Mt Maunganui was searched under a warrant on 15 March 2007.  The prisoner was not there at the time.  Later that date he was located with Mr Crawford, in what  I can  only presume  were  unrelated activities, in the Rotorua Lakes area on Rotoehu Road in a vehicle.   The police wanted to speak to him about what they had discovered in the raid on his home.  The prisoner was cautioned but not arrested at that stage.

[7]      Arrangements were made for the prisoner to be transferred to Detective Constable Lemoto who was tasked to discuss matters with him.   I am satisfied Detective Lemoto was not involved in the previous search of the prisoner’s home. He had been given some background information which would have included information about what was discovered during the course of the police raid.

[8]      The police officer realistically accepted that by the time he met the prisoner he knew, so far as Mr Crawford was concerned, that Crawford and Dixon had been found in the same vehicle stopped in Rotoehu Road and that Crawford was certainly of some interest to the police in terms of their inquiry.

[9]      It was put to Detective Lemoto that he told the prisoner at an early stage (the prisoner  gave  evidence  to  this  effect),  the  police  were  more  interested  in  Mr Crawford and his involvement in the manufacture of methamphetamine than they were in the prisoner’s involvement.  Detective Lemoto has no recollection of saying that to the prisoner.   I do not make any finding on this particular conflict, largely because I do not have to.  In many areas of conflict I prefer the evidence of Detective Lemoto.    However,  I  suspect  that  Detective  Lemoto  was  perfectly  happy  to encourage the prisoner to talk about Mr Crawford and his involvement in matters. To elicit such information would be standard and good police technique.  I have no reason to believe that Detective Lemoto would not have wanted to obtain relevant information if the  opportunity presented  itself.    I do  not,  however,  consider he crossed any lines.

[10]     After the short drive from Te Puke to the Tauranga Police Station Detective Lemoto interviewed the prisoner.   The interview seems to have started at approximately 1650 hours.   At the outset of the interview Detective Lemoto recapitulated certain information which the prisoner had given him during the preceding drive.  The prisoner had already been given his rights, and was given them a  second  time.    Detective  Lemoto’s  evidence  was  he  did  not  write  up  this information in his notebook until after the interview had taken place.  Some of the information contained in the interview recapitulation is not in the officer’s notebook. However, at no stage during the interview did the prisoner dispute these matters had been discussed.

[11]     The  relevant  recapitulation  information  was  that  the  prisoner  had  been addicted to P for approximately six years; approximately four months ago he had observed methamphetamine being cooked at another address (when he went to that address to buy a tinnie for his then girlfriend); that he had himself over the previous four months manufactured methamphetamine on approximately eight to twelve occasions; the process had not been free from difficulty, but that as he became more practised he improved; that he had acquired glassware and other chemicals from various sources; at one stage he had attempted to manufacture a condensor out of plastic which had melted; that he had never done a big cook but had got up to approximately nine points as he had got better; that some of it had been smoked but most of it had been used for himself; that approximately 15 points in toto had been sold by the prisoner.

[12]   These are the major points which arose out of the interview.   The “recapitulation” points were really limited to a start date approximately four months earlier and 8 to 12 attempts to manufacture methamphetamine, and getting the amounts right.

[13]     There are other references to the prisoner being somewhat embarrassed at the prospect of having to sell his “shit product” to his friends.

[14]    With specific reference to the involvement of Mr Crawford the prisoner volunteered the information that he had been helped by Mr Crawford in sourcing pseudoephedrine and that they both had their fingers in the pie so far as cooking methamphetamine was concerned.  The prisoner also said, and this lies at the centre of the evidence he gave today, that his “problem” was offering his kitchen for this purpose.  He also said that he was not a “cook’s ass”.

Discussion

[15]     Mr Nabney’s case was not in any way focused on trying to discredit the evidence of Detective Lemoto.   Nor is there any suggestion that the information volunteered by the prisoner during his police interview was fabricated in some way

or was inaccurately recorded or was the subject of unfair questioning.   Indeed the disputed facts did not emerge until the prisoner himself gave evidence.

[16]     The prisoner really had no satisfactory explanation as to why he was trying to resile from the various admissions he made on 15 March 2007.  In part he suggested that he then felt that if he was co-operative, things would be better for him when it came to court.  Why, if that was his original plan, he did not plead guilty at an earlier stage I do not know but I do not take that factor into account.

[17]     The prisoner admitted that he had a P habit as a result of which he had lost his job a few weeks before the police raid.  He initially suggested that Mr Crawford lived in his flat for a few months but later said this was a mistake on his part, that Mr Crawford had never lived in his flat, and his only flatmate was Mr Stuart Hopwood. He accepted Mr Crawford had a key to his flat and would manufacture items there. There was  a  large  amount  of  available  evidence to  the  Crown  as  to  what  was discovered in the premises.  There was also fingerprint evidence which showed that the prints of both the prisoner and Mr Crawford appeared on various relevant items.

[18]     I am bound to say that if, as he suggested (and I am prepared to accept his evidence in this regard), the prisoner had a perception that the police might be more interested in Mr Crawford than they were in him, it seems surprising that he would have adopted this stance during the police interview of making frank admissions of his own involvement and downplaying somewhat Mr Crawford’s involvement.  As the prisoner candidly stated when I pointed this discrepancy out to him, he has no real explanation as to why he conducted the interview in the way he did.  He said that he was just scared and had not been through the process before.

[19]     The suggestion made in vigorous but fair cross-examination by Mrs Wrigley was that it is somewhat convenient for the prisoner now to try to minimise his own involvement and augment the involvement of Mr Crawford because, it would seem, Mr Crawford is now dead as a result of some drug related alleged murder.

[20]     In a number of areas I found the prisoner’s evidence unsatisfactory.  I suspect that  what  lay  behind  his  evidence  is  not  a  false  attempt  to  try  to  blame  the

manufacturing aspects in his home on Mr Crawford so much as an attempt to stress various features of his involvement which he did not stress at the police interview. These features, which I think have some legitimacy, are first that he was not a skilled cook.   Secondly that frequently his own efforts to manufacture methamphetamine came to nothing (he says he only tried it once although that was not the impression he gave at the 15 March 2007 interview).  Thirdly, that although he was certainly assisting Mr Crawford’s offending by providing the venue for various cooks, his own involvement in those cooks was as an assistant rather than as the primary player.  Mr Dixon again candidly admitted that from time to time he would be there at the start of the manufacturing process although he would not hang around for the end.  His explanation for this partial involvement was that he did not really live at the address full time at that stage because he was living at his girlfriend’s home in Welcome Bay Road.

[21]     My findings are that the admissions which the prisoner made in the drive to Te Puke and during his police interview to Detective Lemoto on 15 March 2007 were largely correct.  I am satisfied that from time to time he did have a hands on involvement in the manufacture of methamphetamine.  I do not, however, make an adverse finding that for many of the cooks which took place in his home, he was assisting Mr Crawford who was also present, rather than manufacturing methamphetamine all by himself.

[22]     Through intuition, a skill perhaps which having tried a number of these cases over the years is not to be downplayed, I put to the prisoner an impression which I had.  This was p21 noe, l 17-24):

Now listen to me carefully.  The impression I have at the moment is that as you rightly admit you helped Mr Crawford by allowing him to use your flat to manufacture methamphetamine in and that as you told Detective Lemoto there were a number of occasions where you actively helped him with a cook and there were also a number of occasions where you helped him acquire glassware and chemicals and although you weren’t doing those things all the time you were doing them some of the time.  Is that a fair summary of your position?

[23]     Having had the question repeated back to him and pondering it, the prisoner then accepted my suggestion to him that I had fairly summarised his position.

[24]     I do not think matters go quite as far as suggesting that the prisoner was never a principal and merely a party who “aided” Mr Crawford.  Nonetheless I am satisfied that for a significant period of his offending Mr Crawford too was involved and they were probably joint principals from time to time.

[25]     That position, with the various findings I have made, is in my judgment the appropriate way of resolving this proof of facts hearing, and will be the proper basis on which to sentence the prisoner so far as count one is concerned.

[26]     The weight of these findings is hard to assess at this stage.  I rather suspect the real truth lies somewhere midway between the version which the prisoner gave to Detective Lemoto on 15 March 2007 and the version which he attempted to give in Court today.

[27]     Why the manufacturing charge was the sole issue to consider is quite clear. In addition the prisoner was selling methamphetamine in a minor but persistent way. He cannot deny knowledge of this.  He had the precursor substances, chemicals, and equipment in his home.

[28]     It is significant, there being no challenges to the ESR finding of Ms Coxon, that  present  in  the  prisoner’s  home  were  “all  the  chemicals  required  for  the extraction  of  pseudoephedrine  from  pharmaceutical  preparations”.    Also  present were all the chemicals required for the extraction of methamphetamine from reaction mixture and its subsequent conversion to “final produce”.   This was not a fully fledged and operative clan lab found in the prisoner’s home when the police raided it.   Nonetheless there were a significant number of chemicals and equipment all designed to be used in the extraction process.   The other four counts are clearly aggravating factors which will have to be considered in the round when arriving at an appropriate end sentence.

………………………

Priestley J