R v Gallie HC Auckland CRI-2010-044-514

[2011] NZHC 1018

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2010-044-514

THE QUEEN

v

ANDREW JOHN SIDNEY GALLIE

Hearing:         17 and 27 June 2011

Counsel:         R A Burns for Crown

S J Lance for Accused

Judgment:      29 July 2011

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 July 2011 at 4:30 pm pursuant to Rule 11.5 High Court Rules.

Registrar/Deputy Registrar

SOLICITORS/COUNSEL:

Meredith Connell (Auckland) for Crown

Simon Lance (Auckland) for Accused

R V GALLIE HC AK CRI-2010-044-514 29 July 2011

[1]      On 2 March 2011 Mr Gallie pleaded guilty to 10 counts relating to dealing in drugs.  On 15 March 2011 he pleaded guilty to a further two drug dealing charges. In summary, he has pleaded to:

(a)       Two counts of possession for supply of a Class A drug; (b)     One count of possession for supply of a Class B drug; (c) Two counts of possession for supply of a Class C drug; (d)    Six counts of offering to supply a Class A drug;

(e)       One count of offering to supply a Class B drug.

[2]      The counts described in the first three categories were all laid as specimen charges.  That is to say, it was alleged that for each count the possession for supply of the drug occurred on multiple occasions during the period of the count.

[3]      The prosecution prepared a summary of facts on 26 November 2010.

[4]      Mr Gallie disputed the accuracy of the summary of facts insofar as it sets out the quantities of drugs associated with the counts.

[5]      A disputed facts hearing was conducted before me on 17 June 2011 and

27 June 2011.  The Crown called Detective Law, the officer-in-charge of the case, to give evidence.  He produced a booklet containing approximately 300 pages of text messages to and from Mr Gallie and gave evidence interpreting them.   Mr Lance called Mr Gallie who disagreed largely with the detective’s interpretation.   At the conclusion of the hearing I directed counsel to file submissions on the issues then apparent.   The Crown’s submissions were filed on 28 June 2011 and Mr Lance’s submissions were filed on or about 20 July 2011.

[6]      Mr Gallie is due to be sentenced in this Court on 20 September 2011.  The quantities of drugs relating to each of the counts will be relevant to fixing the overall sentence.  If the Court takes the view that the quantities were significant, commercial quantities, possessed or offered regularly, then it would impose a sentence significantly greater than if it decided that the quantities were small and possessed or offered infrequently.

[7]      The Crown relies on the intercepted text messages and submits that if these messages are accepted on their face then Mr Gallie is revealed as an active dealer possessing and offering significant quantities of, particularly, Class A and Class B drugs.

[8]      Mr Gallie in his evidence says that the text messages do not paint a real picture.  The quantities referred to often did not exist but were part of the bravado of the drug world and/or for obtaining favourable prices for what were really intended to be small transactions.   Many transactions did not actually proceed and these failures would not be recorded in text messages.   Mr Gallie gave evidence that he was himself a heavy consumer of drugs and that his activities were really only at a level to finance the feeding of his habit.  He argues that if he had been dealing at the level and with the intensity alleged by the Crown then he would possess the material trappings consistent with ill-gotten affluence.  Instead, the Police searches showed a level of near absence of possessions which, he says, is entirely consistent with his account of his activities.

[9]      My task is to assess the oral evidence against the nearly 300 pages of text messages exhibited by the Crown.

[10]     I bear in mind that the onus is on the Crown to prove beyond a reasonable doubt the existence of any disputed aggravating facts (in this case the quantities of

drugs relevant to each count).1

1      Sentencing Act 2002, s 24(2).

[11]     With respect to the Class A drug, methamphetamine, the Crown submits:2

18.In the schedule of quantities of methamphetamine discussed, I have set out the amounts which were being talked about in the text messages contained in the small booklet.  Those comprised requests for methamphetamine, offers to supply methamphetamine, evidence of possession for supply and evidence of supply.  In addition to the text  discussions  there  is  Mr  Gallie’s  evidence  that  he  would

―normally‖  buy in seven gram lots although these would often be

split with his co-offenders.  He also admitted that there were times when he intended to purchase half ounce amounts and one occasion

where he was ready to facilitate the purchase of two ounces by

another person.

19.Mr Gallie was prepared to accept that he had supplied 13 grams of methamphetamine over the period of the operation.  It is submitted that this does not square with his assertion in evidence that he probably used half of what he purchased.  If he used two grams per week for a period of six months that equates to some 50 odd grams of methamphetamine sold during the period. A way to test that basis of assessing his level of supply is to take the figures discussed with Gardner, which relates to amounts solicited by him which tally up to about 200 grams.  Giving him the benefit of the doubt and assuming that  half  of  the  transactions  did  not  proceed,  the  figure  reached would be 100 grams, half of which would equate to the amount that he said in evidence that he consumed himself over that period.

20.Yet another way to test the assumption is to take the value of his admitted weekly consumption of drugs, add in a figure for living expenses and deduct any known income.   Assuming that there is proof that his income was $1,000 nett per week, on his own evidence he would have needed to profit to the tune of about $600-$700 per week at least from drug dealing. At a margin of $5 per ecstasy tablet or LSD square (NOE p85 line 3) and, say, $150-$200 per quarter ounce of methamphetamine (purchased at $4,200 and resold at $750 per gram), and assuming an equal proportion coming from each (less a notional $100 from the sale of ketamine), he would have been selling about seven grams of methamphetamine, 40 ecstasy and 40

LSD  squares  per  week.     That  seems  on  the  high  side  for methamphetamine and the low side for LSD and ecstasy based on

his own evidence.  The Crown would be prepared to accept a figure

of 50 grams of methamphetamine sold during the period as a very conservative estimate.

[12]     In relation to the Class A drug, LSD, the Crown submits:

23.      Again,  on  his  own  account  Mr  Gallie  was using about  12 LSD

tablets  per  week.    He  indicated  that  he  sold  them  in  roughly

2      Submissions of Crown counsel in respect of disputed facts hearing.

comparable quantities, and that he purchased a large amount of 100, but that purchases were ―normally‖ 50 or 30.  In evidence he gave as an illustration that the purchase request for 100 to 500 might have resulted in only 80 trips being purchased.  If he sold an amount of LSD equivalent to the amount he consumed over the six month period, the quantity would be in the region of 250 LSD tablets.  That appears extremely conservative against the amount which he admits purchasing and which he offered to supply.

24.That figure can be tested against the reference in the summary of facts to witness statements which were given by users of approximately 15 of the 150 cellphones which speaks of transactions at 53 to 63 LSD trips.  His own evidence was that the most he ever sold at one time was 100 (p83 line 25).  Whether that was LSD or MDMA/fake ecstasy is unclear; what is clear is that his buying and selling patterns were similar whichever it was.  There was the text in which he said that it would take a week to sell a ―hundy‖ red euros which suggests a turnover of ecstasy and LSD higher than his admitted sales.  For the purposes of sentencing the Crown would be prepared to accept a figure of LSD sales over the six months of the operation of somewhere between 250 and 500 LSD trips.  Referring to the methodology in paragraph 20 above, it is submitted that again this is a conservative figure.

Submissions for the Defence

[13]     Mr Lance stresses (in my paraphrase) that the Crown cannot paint with a broad brush.  It has to prove the quantities of drugs involved for each count beyond reasonable doubt.   He submits that Mr Gallie’s evidence must raise a reasonable doubt as to whether the text messages can be accepted at face value.

(a)      Methamphetamine

[14]     In relation to methamphetamine, Mr Lance submits:3

2.6Quantities  of  methamphetamine  –  Gallie  gives  evidence  that  he would have on-sold approximately fifteen (15) grams of methamphetamine.   That is consistent with the analysis that was conducted and included in the summary of facts.  (See NOE page 71, lines 5-12)   The officer in charge accepts that the analysis of text messages suggests that the amount supplied was up to about sixteen or seventeen (16 or 17) grams.  On page 2 of the summary of facts, he confirmed that ―quantified purchases were of seven (7) grams of methamphetamine‖  –  this  figure  taken  by  witness  statements  of fifteen (15) people.  Counsel submits that there is no evidence that contradicts (beyond reasonable doubt) these figures.

3      Submissions of Defence in respect of the disputed facts hearing.

(b)      LSD

[15]     In relation to LSD, Mr Lance submits:

2.7Mr Gallie goes on to state that he would have sold between fifty and one hundred (50-100) LSD tabs, and fifty and one hundred (50-100) ecstasy tabs.  Again, Counsel suggests that the Crown methology is

―flawed‖  and the evidence of Gallie is not contradicted (beyond

reasonable doubt).  Gallie, of course also used these drugs himself.

Analysis

[16]     The Court is not here concerned with proof of guilt.   If it were, then the analytical focus would be on the evidence relevant to the elements of the alleged offences.  But Mr Gallie has pleaded guilty to the charges and so the analytical focus is on the evidence relevant to sentence. That, in this case, is a broader focus.

[17]     The  Crown,  as  stated  above,  must  prove  beyond  reasonable  doubt  the relevant aggravating facts.  Section 24(3) of the Sentencing Act provides:

... aggravating fact means any fact that—

(a)       the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and

(b)       the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case

[18]     Therefore, in this case the focus is not narrowly on proof of precise quantities of drugs but more broadly on the general quantities of drugs which, if proved, would justify a greater penalty.

[19]     As to what quantities would have this effect, assistance can be obtained from R v Fatu4  which relates particularly to methamphetamine which is the Class A drug which I consider to be the ―lead drug‖ for the purpose of Mr Gallie’s eventual sentence.  Fatu relates to the sale or supply of methamphetamine whereas here we are concerned with possession for supply and with offering to supply.  However, the

maximum penalties are the same and I take Fatu as a good reference case for the sentencing decisions in Mr Gallie’s case.

[20]     Fatu mandates four sentencing bands based on the quantity of the drug sold or supplied. The bands are for starting points as follows:

(a)      Less than 5g – two to four years’ imprisonment. (b)      5g to 250g – three to nine years’ imprisonment. (c)      250g to 500g – eight to 11 years’ imprisonment. (d)      500g or more – 10 years’ to life imprisonment.

Mr Gallie’s drug dealing

[21]     Having heard the evidence of Detective Law and of Mr Gallie, and having considered their evidence against the relevant text messages, I find the following to be facts relevant to sentencing:

(a)      Over the period of the counts to which Mr Gallie has pleaded guilty (26 November 2008 to 30 April 2009) he was an active and frequent dealer in Class A drugs (principally methamphetamine and LSD, but also on occasions cocaine) and the Class B drug known as ecstasy. He dealt less frequently in the Class C drug, cannabis.

(b)Mr  Gallie  operated  primarily  as  a  retailer  but  would  act  as  a wholesaler if given the opportunity.5

(c)      Mr Gallie had a significant customer base and reached out to them actively.  There were 150 contacts on his cellphone and on occasions he would bulk text 44 of them giving details of his current stock in trade.

(d)Mr Gallie was also a consumer of drugs.  The Crown has not proved beyond reasonable doubt that Mr Gallie profited from his drug dealing beyond providing himself with the funds he needed to finance his own drug habit.   There is no evidence that he possessed cash or other assets which could be attributed to his drug dealing.

(e)      Mr Gallie minimised his culpability when giving evidence.  However, when deciding what the Crown has proved beyond reasonable doubt I accept:

(i)That the text messages must be interpreted cautiously.  They do not always give the full account of a transaction.   Some might not have proceeded;

(ii)There is a degree of bravado evident in the text messaging (i.e. at times quantities might be exaggerated).

(f)      Quantities of drugs possessed for supply (based on the evidence of what he actually supplied) over the period of the indictment were at least:

(i)       For methamphetamine: 50 grams; (ii)   For LSD: 500 LSD trips;

(iii)     For cocaine: 10 grams; (iv)       For ecstasy: 500 tablets;

(v)      For cannabis: it is impossible to be sure.

(g)Offers to supply these drugs were numerous.  The quantities offered were significantly greater than in (f) above.

[22]     On these findings, sentencing of Mr Gallie will proceed on the basis that his methamphetamine dealing would place him in the lower half of the Fatu band 2.  His dealing in other drugs would warrant some uplift along the band 2 scale.

[23]     Mr Gallie is not, of course, for sentence on charges of actually supplying drugs.   But his admissions that he did actually supply drugs will be part of the context of the charges on which he will be sentenced.

[24]     I raise for counsel the following issues which will need to be addressed in sentencing submissions:

(a)      To what extent are the Fatu bands relevant to possession for supply and offering to supply?

(b)To what extent should the charges relating to drugs other than methamphetamine affect the sentence?

(c)      The charges of possession for supply are given context by Mr Gallie’s drug dealing business.   That business is addressed in the charges of offering to supply.  How should those charges contribute to the overall

sentence?

Brewer J