R v Harding
[2017] NZHC 1181
•1 June 2017
IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY
CRI-2014-088-003309 [2017] NZHC 1181
THE QUEEN
v
BROWNIE JOSEPH HARDING
Hearing: 5 and 6 April 2017 Appearances:
Michael Smith and Richard Annandale for the Crown
Mark Edgar for the DefendantJudgment:
1 June 2017
JUDGMENT OF MOORE J [Reasons on disputed facts]
This judgment was delivered by me on 1 June 2017 at 10:30 am pursuant to Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Date:
R v HARDING [2017] NZHC 1181 [1 June 2017]
Contents
Paragraph
Number
Introduction ..............................................................................................................[1] Factual overview and background .........................................................................[8] Procedural history..................................................................................................[15] Disputed facts hearing – s 24 of the Sentencing Act 2002...................................[32] Crown case ..............................................................................................................[37] Mr Harding’s case ..................................................................................................[59] First phase............................................................................................................[60] Second phase ........................................................................................................[62] Third phase...........................................................................................................[63] Fourth phase ........................................................................................................[64] Fifth phase............................................................................................................[65] Sixth phase ...........................................................................................................[66] Analysis ...................................................................................................................[67] Role ......................................................................................................................[68] Quantity................................................................................................................[83]
(a) First phase .................................................................................................[84] (b) Second phase..............................................................................................[89] (c) Third phase ................................................................................................[94] (d) Fourth phase ..............................................................................................[99] (e) Fifth phase ...............................................................................................[105] (f) Sixth phase ............................................................................................... [111]
Conclusion............................................................................................................. [116]
Introduction
[1] The defendant, Brownie Joseph Harding, pleaded guilty to 11 charges which arise out of his involvement in a large scale and highly sophisticated methamphetamine manufacturing operation.
[2] Six of the charges allege that on specified occasions he manufactured methamphetamine.
[3] The Crown claims that Mr Harding sat at the apex of the manufacturing
operation and that he “spearheaded” it. Mr Harding disagrees.
[4] The Crown also claims that quantities of methamphetamine in excess of nine kilograms were manufactured over the course of the three month surveillance and monitoring operation. Mr Harding says that the quantities produced were much more modest and of the order of 2.9 kilograms.
[5] These differences are not only stark and irreconcilable but they are also
central to an assessment of Mr Harding’s criminality.
[6] As a consequence, I advised the parties that I regarded the Crown’s claims as to the role Mr Harding played and the quantities of methamphetamine manufactured as significant aggravating factors which, if proved beyond a reasonable doubt, would necessarily have a material effect on my assessment of Mr Harding’s criminality and thus his sentence.
[7] A disputed facts hearing under s 24 of the Sentencing Act 2002 (“the Act”) took place before me on 5 and 6 April 2017. On 6 April 2017, with the agreement of counsel, I issued a results only decision in which I advised counsel I had determined that at least 6.5 kilograms of methamphetamine had been manufactured over the course of the operation. I also advised that the Crown had satisfied me Mr Harding sat at the apex of the hierarchy and that he “spearheaded” the manufacturing and distribution operation. A copy of my results decision is attached. I advised my reasons would follow in writing.
Factual overview and background
[8] In July 2014 the Organised and Financial Crime Agency of New Zealand (“OFCANZ”) commenced an investigation into the activities of an organised criminal group made up of patched members of the Headhunters Motorcycle Gang and others (“the Group”). The operation was codenamed “Taskforce Easter”.
[9] The Group’s purpose was to manufacture, sell and distribute large quantities of methamphetamine. The Crown’s case was that Mr Harding sat at the apex of this Group and directed its activities.
[10] The manufacturing operation took place inside a residential dwelling at Waiotira, a remote rural location situated approximately 30 kilometres southwest of Whangarei. The property belonged to Mr Harding’s sister and brother-in-law who were living in Australia. The drugs produced were sold throughout the Auckland and Northland regions.
[11] Over the three month period of surveillance there were six distinct manufacturing phases which took place between September and December 2014. These were as follows:
(a) 23 to 26 September 2014;
(b) 30 September to 1 October 2014; (c) 8 to 9 October 2014;
(d) 20 to 23 October 2014;
(e) 28 to 31 October 2014; and
(f) 6 to 14 November 2014.
[12] On 17 October 2014, shortly before the fourth phase of manufacturing commenced, an audio device was installed in the kitchen of the house. This allowed
the Police to monitor and record what was being said and done inside. An analysis of these conversations revealed that very substantial quantities of methamphetamine were being produced. Because the audio device was not installed until after the third manufacture it was not known, with any level of precision, how much methamphetamine was produced in the first three manufacturing phases. However, the Crown claimed that in respect of the fourth, fifth and sixth phases 2,545, 1,900 and 2,800 grams respectively were manufactured. Even without including any drugs produced in the first three phases this totals 7,245 grams of methamphetamine.
[13] The other relevant factor is that the methamphetamine produced was of a very high quality. On 14 November 2014 the Police stopped an Auckland bound car driven by Mr Harding’s son, Evanda. Inside were 80 self-sealing bags, each containing one ounce or 28 grams of methamphetamine, totalling 2,240 grams. Analysis showed the drug to be 73 per cent pure which is nearly the highest level of purity technically achievable.
[14] Mr Harding was the last of the defendants to be sentenced. The four principal cooks all pleaded guilty and received sentences with starting points ranging from 19 to 25 years. Other defendants, whose culpability was somewhat lower, were sentenced as parties to the manufacture, possession for supply and participating in an organised criminal group.
Procedural history
[15] The procedural background to this matter is not straightforward. Some explanation needs to be given as to account for how it was a disputed facts hearing took place 10 months after Mr Harding pleaded guilty.
[16] On 16 December 2014, following his arrest at the termination of the operation, Mr Harding was charged with a large number of offences. However, as a result of negotiations between the Crown and the defence, it was agreed that if he were to plead guilty to 11 charges, the balance would be withdrawn. It appears that while the Crown may have been reasonably flexible on some charges, any resolution required an acceptance of guilt on each of the six manufacturing charges.
[17] On 2 June 2016 Mr Harding pleaded guilty to the 11 charges, including the six manufacturing charges, and was remanded for sentence to 1 July 2016. The details of those charges are set out in my sentencing notes.1
[18] On 27 June 2016 the trial of Mr Harding’s four co-defendants commenced. That trial took approximately five weeks. I discharged one defendant at the end of the Crown’s case. The remaining three defendants were convicted on various counts including being a party to the manufacture of methamphetamine and participating in an organised criminal group.
[19] Mr Harding’s sentencing was twice adjourned because it was agreed it was preferable to sentence him after his co-defendants’ position had been determined. Sentencing was finally set down for 1 September 2016.
[20] On the morning of 1 September 2016, Mr Harding’s then counsel, Ms Pecotic, asked for time to take instructions on the contents of the summary of facts. It was not expected this would take long and the parties expressed optimism that the sentencing would proceed later that day. This optimism proved misplaced. Ms Pecotic spent the balance of that day and most of the following day taking Mr Harding through the Crown’s summary of facts and obtaining his written instructions. At the end of that exercise Mr Harding provided a handwritten, signed statement dated 2 September 2016 which was effectively a commentary on the summary of facts. He also made handwritten amendments to the summary of facts, principally in relation to his role in the enterprise and the amounts of methamphetamine produced. This document concluded with a note written in Mr Harding’s hand which read:
“I have read the summary of facts and have corrected things in it. B Harding [signature] 2.8.16”
[21] The date of 2 August 2016 is an error. It should be 2 September 2016, the same day Mr Harding signed his statement.
[22] In short, Mr Harding did not accept the Crown’s claim that he had “spearheaded” the operation or that he was the director and supervisor of the activities of the Group. He also refused to accept the quantities which the Crown claimed the Group had produced over the course of the six manufacturing phases. Unsurprisingly, the Crown maintained its position in relation to both Mr Harding’s role and the quantities of methamphetamine manufactured in each phase.
[23] Given these differences and the central significance of quantity I had no option but to adjourn the sentencing and set the matter down for a disputed facts hearing.
[24] That hearing was scheduled for 23 November 2016. The expectation was that I would first determine Mr Harding’s role and the quantities of methamphetamine produced. Sentencing would follow the next day.
[25] On 1 November 2016 Ms Pecotic applied to adjourn the disputed facts hearing and the sentencing because she was involved in a complex trial in Rotorua. I refused to adjourn either hearing and as a consequence Mr Niven was instructed by Ms Pecotic to appear in her stead.
[26] The disputed facts hearing commenced before me on 23 November 2016. It soon became apparent that a central aspect of Mr Harding’s challenge to quantity was his claim no methamphetamine at all was produced during the first two manufactures. Further, in the course of discussions with counsel, it emerged that this claim also extended to the fifth manufacture.
[27] Because Mr Harding refused to sign any written instructions, it was suggested by Mr Niven that I should hear directly from him. Mr Harding told me he wished to make an application to vacate his pleas of guilty in respect of the first, second and fifth manufactures. I directed him to file an application together with an affidavit in support the following day. Mr Smith, for the Crown, urged me to dismiss the application summarily. He submitted that the application had no merit and against the background of delay and prevarication it was apparent Mr Harding was
gaming the system to secure an improper advantage. I said I would decide whether to dismiss the application after I had received it and considered the grounds.
[28] The following day I received Mr Harding’s handwritten application and affidavit in support. He claimed he had consistently told Ms Pecotic he had extracted pseudoephedrine in the first two manufactures and that he pleaded guilty by reason of a mistake of law. In short, he blamed his lawyer.
[29] Given that claim it was obvious evidence would be required to resolve the question. I declined the Crown’s request to dismiss the application summarily. Instead, I obtained from Mr Harding a waiver of legal professional privilege and made timetabling orders in respect of the filing of evidence and submissions.
[30] On 4 April 2017 I heard Mr Harding’s application to vacate his pleas of
guilty. I dismissed the application and advised I would give reasons in writing later.
[31] The following day I embarked on the present application. I heard evidence from the officer-in-charge, Detective Sergeant Dunhill. Mr Harding gave evidence. I heard submissions and on 6 April 2017 I delivered my results decision advising that full reasons would follow.
Disputed facts hearing – s 24 of the Sentencing Act 2002
[32] Section 24 incorporates recommendations of the New Zealand Law Commission.2 It restates and clarifies the law relating to the facts on which an offender is to be sentenced.
[33] Relevantly, s 24 provides:
“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.
[34] Section 24(3) defines an aggravating fact as meaning any fact which a prosecutor asserts justifies a greater penalty than might otherwise be appropriate for the offence and the Court accepts is a fact that may, if established, have such an effect on the sentence.
[35] Given the material differences between the claims of the Crown and Mr Harding I advised the parties I regarded the quantities of methamphetamine manufactured and Mr Harding’s role in the enterprise as central to my assessment of his culpability. Such an indication is mandated by s 24(2)(a) of the Act.3
[36] Where, as in the present case, the factual dispute arises after a plea of guilty it is for the prosecutor to satisfy me beyond a reasonable doubt that the disputed aggravating fact exists.4 That is the standard of proof I have applied in this case.
Crown case
[37] The Crown’s case was that Mr Harding sat at the head of the methamphetamine manufacturing operation which produced in excess of nine kilograms of the drug.
[38] The disputed summary of facts does not quantify the amounts alleged to have been manufactured in the first three phases but the Crown initially maintained the amounts produced were comparable to the yields obtained in the fourth, fifth and sixth manufacturing phases. Presumably this was because both surveillance monitoring and a covert search undertaken within a few days of the Police operation commencing revealed a large, sophisticated, viable laboratory set up specifically for the manufacture of methamphetamine indicating the address, had, for some time, been operating as a clandestine laboratory.
[39] Swabs taken from the kitchen area were analysed by the ESR. The levels of methamphetamine residue found on analysis were consistent with a manufacturing operation being undertaken inside the property.
[40] The amounts of drug manufactured in the last three phases were capable of more accurate estimates because the listening device which was installed after the third phase revealed what was happening inside the house. Subsequent covert searches and ESR analyses confirmed that the property continued to be used as a methamphetamine manufacturing laboratory.
[41] The last three covert searches5 revealed increasing levels of sophistication and scale. That the manufacturing operation increased its productivity over time is
also apparent from the increasing number of cooks engaged in each phase.
4 Section 24(2)(c) of the Act.
5 Overnight on 9/10 October, 16/17 October and 15/16 November 2014.
[42] Although the summary of facts claimed that the amounts manufactured in the first three phases were comparable to the quantities manufactured later, this position was departed from at the disputed facts hearing. Detective Sergeant Dunhill undertook a comparative analysis of the respective man-hours invested during each of the early phases by reference to the amount of methamphetamine known to have been produced during the final sixth phase.
[43] The calculation worked in this way. During the sixth phase, between 6 and
14 November 2014, 2,800 grams of methamphetamine was produced.6 From the interception logs and surveillance records Detective Sergeant Dunhill determined that 147 hours and 32 minutes, or 8,852 minutes, were spent at the address. A simple ratio calculation revealed that during phase six the cooks were producing on average one ounce (or 28 grams) of methamphetamine for every 89 minutes. Using this co- efficient and the relevant surveillance records, Detective Sergeant Dunhill was able to estimate the quantity of methamphetamine manufactured in each of the first three phases.
[44] Surveillance records determined that the combined total of man-hours invested during phase one was 98 hours and 38 minutes. Applying the formula the total man-hours for phase one had the potential to yield approximately 66.5 ounces (or 1,708 grams) of methamphetamine.
[45] In phase two the total man-hours were calculated to be 68 hours and 48 minutes or 4,128 minutes. Applying the formula, the total man-hours had the potential to yield approximately 46 ounces (or 1,288 grams) of methamphetamine.
[46] In phase three the total man-hours were calculated to be 75 hours and
24 minutes or 4,524 minutes. Applying the formula, the total number of man-hours in phase three had the potential to yield approximately 51 ounces (or 1,428 grams) of
methamphetamine.
6 This was initially accepted by Mr Harding but subsequently he claimed a reduced quantity of
2,200 grams was produced, being the 80 ounces found in the car on 14 November 2014.
[47] On 17 October 2014 the listening device was installed and the next three phases of manufacture were subject to interception.
[48] In order to calculate the quantities manufactured in the fourth phase, Detective Sergeant Dunhill undertook the man-hours calculation as well as an analysis of the intercepted communications and what they revealed in terms of the amount of pseudoephedrine being converted to methamphetamine. The evidence of the appropriate conversion rate was drawn from two sources, Mr Harding’s statement of 2 September 2016 and the ESR.
[49] In Mr Harding’s statement he said the maximum yield of methamphetamine
from 10 “sets” of ContacNT is 26 ounces (or 700 grams) of methamphetamine.
[50] He also said that for the 30 set cook in phase four it took 12 hours to extract the pseudoephedrine, 12 hours to “bomb” and 17 to 21 hours to distil. Thus adopting his calculations, a 10 set manufacture would take four hours to extract the pseudoephedrine, four hours to “bomb” and seven hours to distil, a total of 15 hours.
[51] The ESR provided general evidence of conversion rates noting that a 50 to 70 per cent pseudoephedrine to methamphetamine conversion ratio could be expected depending on the skill of the cook.
[52] Detective Sergeant Dunhill did not initially accept that only 30 sets of ContacNT were used in phase four to extract pseudoephedrine. He opined that for the fourth manufacturing phase at least 40 sets of ContacNT were used to manufacture methamphetamine at the address. Adopting Mr Harding’s calculation of 26 ounces of pseudoephedrine per 10 sets, then at least 104 ounces (or 2,912 grams) of pseudoephedrine was extracted. The potential yield of methamphetamine from that quantity of pseudoephedrine ranges between 1,456 grams and 2,038 grams (being the variable 50 to 70 per cent yields).
[53] Undertaking the man-hour analysis, Detective Sergeant Dunhill concluded that a total of 95 hours and 22 minutes, or 5,722 minutes was invested during the
fourth phase which, using the formula, had the potential to yield approximately
64 ounces (or 1,792 grams) of methamphetamine.
[54] A similar analysis was undertaken in respect of the fifth manufacturing phase between 28 and 31 October 2014.
[55] After examining the intercepted communications, Detective Sergeant Dunhill
agreed with Mr Harding’s statement that 30 sets may have been processed, extracting
1,900 grams of pseudoephedrine. Adopting Mr Harding’s formula of 26 ounces from 10 sets, one would expect three times that figure (78 ounces) would have been extracted from 30 sets. This would provide a yield ranging between 1,092 grams and
1,528 grams of methamphetamine.
[56] The total number of man-hours invested in phase five was calculated to be
102 hours and eight minutes or 6,128 minutes. Applying the formula, an effort of
6,128 minutes would translate to a potential yield of approximately 68 ounces (1,904 grams) of methamphetamine.
[57] I have already discussed the sixth phase. Eighty (80) ounces of high purity methamphetamine was found in an Auckland-bound car driven by Evanda Harding. The intercepted communications revealed that after this quantity of methamphetamine was taken from the address the manufacturing operation continued into the afternoon with a further 20 ounces manufactured before the cooks became aware the shipment had been intercepted and stopped.
[58] For that reason the Crown says it is plain that 2,800 grams of methamphetamine were produced during phase six.
Mr Harding’s case
[59] Although Mr Harding has consistently maintained he was not the “king pin” of this methamphetamine manufacturing operation, his position in respect of the quantities of methamphetamine manufactured has changed considerably. The details of those changes are discussed later in this judgment. However, it is noteworthy that with each version Mr Harding’s claims as to quantity have progressively reduced
with the result that most recently, for some phases, he claimed no methamphetamine at all was manufactured. The most recent iteration was contained in his evidence before me at the disputed facts hearing. This is summarised below.
First phase
[60] For the first manufacturing phase Mr Harding claimed that only pseudoephedrine was extracted. He said neither Mark Lang nor Elijah Rogers knew how to manufacture methamphetamine and the purpose of the activities in the first phase was for Mark Lang to instruct Elijah Rogers on how to extract pseudoephedrine from ContacNT.
[61] He said that at this early stage the property on Taipuha Road had not been set up to manufacture methamphetamine because some essential chemicals, such as iodine, were not available.
Second phase
[62] In the second phase Mr Harding claimed he was not aware of any activity at the address until the second day when he was told by a co-defendant that Jaydean Hura and Elijah Rogers were at the property. He claimed Mark Lang was involved in extracting pseudoephedrine because Jaydean Hura did not have the necessary knowledge at that time. Mr Harding claimed that he had nothing to do with these activities but believed between 400 and 450 grams of pseudoephedrine was extracted with a view to converting that to methamphetamine the following week when the iodine became available.
Third phase
[63] According to Mr Harding, the third manufacturing phase used the pseudoephedrine extracted during the two previous phases. He said nine ounces (or
252 grams) of methamphetamine was produced. He said he was not involved. His role was confined to counting up the quantity of drug manufactured and, as I understood him, taking possession of it for delivery.
Fourth phase
[64] During the fourth phase Mr Harding said that Jaydean Hura and Mark Lang were at the property extracting pseudoephedrine. Mr Harding went out to the address to pick something up and then drove to Auckland with Elijah Rogers, Anthony Mangu and Kiata Pene. He said he was told Elijah Rogers had 10 sets of ContacNT. Mr Harding instructed them to prepare the ContacNT by “taking the wax off it”. He said they ended up with 770 grams of pseudoephedrine which they converted into 18 ounces (or 504 grams) of methamphetamine.
Fifth phase
[65] In respect of the fifth manufacture, Mr Harding said he received a telephone call from Elijah Rogers advising that the cooks had encountered some problems in the manufacturing process. According to Mr Harding he was told the cooks had obtained 1,900 grams of pseudoephedrine but for some reason it had not converted to methamphetamine. He said he went out to the property to investigate. He was angry because they had lost a large amount of the product. Mr Harding said he was deeply concerned that he, and the cooks, would be held responsible for the loss by others. He said he was at the address for about 20 minutes. He returned the following day when he said he “bagged up” about 20 ounces (or 560 grams) of what he believed was methamphetamine. However, after delivering it to Auckland, he was advised that it was actually pseudoephedrine.
Sixth phase
[66] The sixth and final phase ran from 6 to 14 November 2014. Mr Harding said he instructed Evanda Harding to deliver 80 ounces of methamphetamine to Auckland on 14 November 2014. However, he denied a further 20 ounces was produced later that day. He said that the references in the transcripts to a further 20 ounces related to the 20 ounces of ephedrine which had been produced in the fifth phase.
Analysis
[67] I turn now to consider the evidence in the light of Mr Harding’s claims that
he did not sit at the apex of the operation and that the quantities of methamphetamine
manufactured were very much more modest than the amounts claimed by the Crown.
I shall deal with Mr Harding’s role first.
Role
[68] The Crown referred me to a large number of intercepted communications. In some, Mr Harding was a participant. In others, although not present, he was referred to.
[69] Additionally, I had the considerable advantage during the trial of
Mr Harding’s co-defendants of listening to these conversations over many days.
[70] That evidential combination leads me to be sure that Mr Harding was, throughout the period, the undisputed and unchallenged director of this manufacturing operation. While I accept there may have been others in Auckland, presumably members of the Headhunters hierarchy, to whom he was required to account, the manufacturing operation at the property was headed by him alone. He directed and superintended the Group across all phases of the endeavour including the manufacturing and the sourcing of pseudoephedrine, arranging the premises, directing the sourcing of reagents and equipment, organising the shifts of cooks and their transport to and from the address and directing the delivery of the methamphetamine to Auckland. Each of these aspects of his control is supported by the contents of the intercepted communications and the monitoring and surveillance evidence.
[71] However, in order to convey the extent of Mr Harding’s total domination of this operation and its various players, a review of some of the transcripts assists. Necessarily, such a summary is limited but it does provide some insight into Mr Harding’s total dominance and control of all phases of the Group’s manufacturing and distribution processes.
[72] In conversations on 21 October 2014, four days after the listening device was installed, it is apparent Mr Harding gave Elijah Rogers, Anthony Mangu and Jaydean Hura instructions on the steps to be taken in the manufacturing process and what should be done when. On the same day an exchange between Jaydean Hura, Elijah
Rogers and Mr Harding revealed that the cooks were seeking instructions from Mr Harding about the manufacturing, when the product was going to be sent down to Auckland and when the next manufacturing phase would start. In a later conversation that day, after Mr Harding had left, the two men spoke about Mr Harding observing that they were pleased that he was happy because sometimes he could be “… so angry”.
[73] On other occasions Mr Harding was referred to as “the bro” or “the boss”. For example, on the last day of the final cook Jaydean Hura, Elijah Rogers, Anthony Mangu, Mark Lang and Evanda Harding were present. Evanda Harding was at the address for the purpose of taking delivery of the 80 ounces of methamphetamine.7 In the course of the conversation Anthony Mangu said that they needed to tell “the bro” they were going to be a bit longer. This was a reference to the methamphetamine not
being ready for Evanda Harding to uplift. Mr Harding, in evidence, accepted the reference to “the bro” was a reference to himself. A few minutes later Anthony Mangu said that he would “… ask the boss”. Plainly, given the provenance and context of that statement the “boss” was Mr Harding.
[74] However, the most telling evidence of Mr Harding’s total domination of his cooks emerged from the fifth manufacture on 28 October 2014. Elijah Rogers and Jaydean Hura arrived at the address shortly after 7:00 am. From the interceptions it was plain they were involved in different phases of methamphetamine manufacture. Each participated in different parts of the extraction and conversion process. Towards the evening it emerged that the two men were experiencing some technical production problems because product was leaking from the apparatus. They called Mr Harding who immediately drove out to the address. By this time it was 9:30 pm. Having heard the conversations played in Court it may fairly be said that the transcripts not only inadequately convey the extent of Mr Harding’s fury but also his total domination of his two workers.
[75] He harangued them for their ineptitude. He told them what they needed to do to recover the lost product. He told them that it was his responsibility to account for
7 However, the manufacturing process had not been completed and he was required to return later in the day to uplift the finished product.
the loss to those in Auckland. Some sense of his undisputed authority is revealed in the following passage:
“So yeah yeah you fullas have got no choice. I don’t know what went wrong. I don’t know like, but it’s somewhere. I don’t give a fuck if it’s on the floor, you mop that shit up and put it back in. It’s somewhere. It can’t run anywhere.”
[76] Throughout these conversations Mr Harding was directive and threatening. At no point did either cook attempt to contradict or challenge him. Indeed the very contrary was the case. They were apologetic, compliant, respectful, even fearful. Throughout Mr Harding was very much the man in charge directing them both as their superior and as the one with the technical knowledge necessary to remedy the problem.
[77] In support of that conclusion the following passage attributed to Mr Harding is illustrative:
“You fullas squeeze shit out of whatever and then if I’m not home you give it to Evanda … Fucken just carry on, don’t stop because [pause] that’s why they … the best. You find it. It’s somewhere. I don’t give a fuck if it’s on the floor. Mop that shit up. Everything goes in there. I don’t give a fuck if you have to fucken pull this floor up. You chuck it in there.”
[78] In a different context there is also evidence Mr Harding was consulted over the supply of the drug to others. For example, on the eve of the last manufacturing phase, Elijah Rogers called Mr Harding and asked him about supplying a third party; how much should be supplied and at what price. This demonstrates that not only was Mr Harding directly involved in manufacturing but he was also actively engaged in supervising the distribution of the drug to others. There are other examples.
[79] By the final phase Mr Harding was subject to a sentence of home detention and was confined to his home in Whangarei. Notwithstanding that confinement the intercepted communications reveal he directed those working for him to visit him. He gave directions to his cooks and monitored the progress of the manufacturing. An example of his interest and control, despite his dislocation, was apparent in a conversation recorded shortly after 7:00 am on 14 November 2014, the day when the
80 ounces was intercepted on route to Auckland. A conversation between Jaydean
Hura, Anthony Mangu and Elijah Rogers revealed that a further manufacturing phase was contemplated by Mr Harding. Anthony Mangu said:
“Oh went over in like … 3 hours. And it was still coming. But he said if they’re good, if they’re good with the numbers we’re doing again. Must be straight away when we get back from guard.”
[80] Later that afternoon, after the drugs had been intercepted and Evanda Harding arrested, Mr Harding called Elijah Rogers at the address. Cautiously and obliquely he asked how much they had. Elijah Rogers said 20 to which Mr Harding directed him to leave the drugs there and to go over and see him [Mr Harding] because “something just happened”. This, obviously, was a reference to Evanda Harding’s arrest and the interception of the drugs.
[81] There are other conversations involving Mr Harding in which he issued instructions to others in the Group who were concealing funds for him. In numerous conversations he directed others to assist by sourcing and supplying plant, equipment and reagents. These included kegs, frying pans, ice, gas bottles and caustic soda. Again, those conversations plainly reveal the control and oversight Mr Harding exercised over the Group at all times.
[82] For these reasons I totally reject Mr Harding’s claim his involvement was largely confined to providing the premises, delivering supplies from time to time, providing technical advice when asked and being little more than a courier of the finished product. Those claims do not withstand even the most superficial of scrutiny. The Crown’s description of Mr Harding as spearheading the operation and being the “king pin” is entirely apt.
Quantity
[83] In considering this issue I shall consider each of the manufacturing phases in turn and determine what quantity, on the evidence, I am satisfied was manufactured and why I concluded that a quantity of at least 6.5 kilograms was produced in total. This will require consideration of the evidence of Detective Sergeant Dunhill and comparing the various accounts given by Mr Harding on the issue of quantity.
(a) First phase
[84] It is noteworthy that in his statement of 2 September 2016 Mr Harding said he could not remember how much methamphetamine was manufactured in the first three phases. He said the manufacturing was undertaken in sets of 10. He said that
10 could have been produced on each of the first three phases. This would have totalled between 70 and 75 ounces (or 1,960 grams to 2,100 grams) of methamphetamine. Taking the higher figure, this represents an average of 700 grams of methamphetamine produced in each of the first three manufactures.
[85] I note that Elijah Rogers, who was jointly charged with Mr Harding on the first manufacture, accepted that 700 grams of methamphetamine was produced.
[86] That amount is considerably less than the quantity Detective Sergeant Dunhill estimated through his man-hours calculation of 1,708 grams. However, that discrepancy may, at least in part, be explained by the fact that later manufacturing phases were more sophisticated and undertaken by cooks who, by the time of the sixth manufacturing phase, were plainly highly proficient and skilled. This is evident not only from the quality of the methamphetamine produced but also the fact that by the sixth phase the manufacturing operation was being conducted by multiple cooks on an industrial scale and in batches, rather like a factory production line.
[87] It follows that I reject Mr Harding’s explanation in evidence that no methamphetamine was produced during this phase. That is not only inconsistent with his previous statement but is also inconsistent with the evidence of the covert search and the ESR results from the swabbing.
[88] I am satisfied that at least 700 grams was manufactured during this phase.
(b) Second phase
[89] My conclusions in respect of the quantities produced in this phase are similarly based.
[90] I also note that Elijah Rogers and Jaydean Hura were jointly charged with Mr Harding. Elijah Rogers accepted that 700 grams was produced during this phase. Jaydean Hura accepted that the quantity was between 750 and 1,000 grams.
[91] Detective Sergeant Dunhill’s man-hours analysis concluded that 1,288 grams of methamphetamine was produced.
[92] In his statement of 2 September 2016 Mr Harding accepted that up to 700 grams was produced.
[93] For the same reasons as above, I reject Mr Harding’s account that no methamphetamine was produced. I am satisfied that at least 700 grams was produced during this phase.
(c) Third phase
[94] In his evidence Mr Harding accepted that 252 grams of methamphetamine was manufactured. This, he claimed, was from the pseudoephedrine which had been extracted in the first two phases. However, that account is in direct contrast to the account given in his statement of 2 September 2016 that up to 2,100 grams of methamphetamine was produced over the first three phases.
[95] It is also inconsistent with the quantities Elijah Rogers and Jaydean Hura accepted were manufactured in the third phase, being 700 grams and 750 to 1,000 grams respectively.
[96] Detective Sergeant Dunhill’s man-hours calculation estimated that approximately 1,428 grams of methamphetamine was produced.
[97] Again, for the same reasons, I reject Mr Harding’s account. Not only does it sit uncomfortably with the balance of the evidence, but it is wholly inconsistent with his statement that an average of up to 700 grams was manufactured in these first three phases.
[98] I am satisfied that at least 700 grams of methamphetamine was manufactured in this phase.
(d) Fourth phase
[99] In his evidence Mr Harding said that 504 grams of methamphetamine was produced in this phase.
[100] That is in contrast with both his statement of 2 September 2016 and his amended summary of facts of the same date. In both he said 770 grams was produced.
[101] For this phase Elijah Rogers, Jaydean Hura, Anthony Mangu and Mark Lang were jointly charged with Mr Harding. Elijah Rogers accepted that 770 grams had been manufactured. Jaydean Hura and Anthony Mangu accepted the figure contained in the original summary of facts of 2,545 grams.
[102] Detective Sergeant Dunhill’s yield calculation based on conversion rates
ranged from 1,546 grams to 2,184 grams. His man-hours calculation suggested
1,792 grams would have been produced.
[103] While the evidence strongly indicates a quantity well in excess of the amount Mr Harding was prepared to accept in his admissions of 2 September 2016, I am prepared to accept his figure of 770 grams for the purposes of the sentencing exercise.
[104] It follows that I reject Mr Harding’s most recent claim that the amount manufactured was a good deal less than that. I found his account entirely unconvincing.
(e) Fifth phase
[105] This is the manufacturing phase which Mr Harding claimed yielded no methamphetamine due to the technical production difficulties encountered by the cooks.
[106] However, this claim needs to be contrasted with both his statement of
2 September 2016 and his amended summary of facts. In his statement he accepted that 1,008 grams of methamphetamine was produced and in his amended summary of facts he said the amount was 1,400 grams.
[107] Elijah Rogers, Jaydean Hura and Anthony Mangu were jointly charged with
Mr Harding. They accepted that the quantities produced were 1,400, 1,900 and
1,900 grams respectively.
[108] Significantly, these figures are broadly comparable to Detective Sergeant
Dunhill’s man-hours calculation of 1,904 grams and the yield calculation of 1,092 to
1,638 grams.
[109] It follows that I entirely reject Mr Harding’s claim that no methamphetamine was manufactured. It is inconceivable, in my view, that if he believed no methamphetamine had been manufactured he would have made the admissions he did in his statement and amended summary of facts.
[110] However, I am prepared to accept the lower figure of 1,008 grams, a view which on any analysis is a generous one.
(f) Sixth phase
[111] This is the manufacture which Mr Harding claimed resulted in 2,200 grams of methamphetamine being produced. In evidence he said the difference of 600 grams between his figure and the Crown’s was the amount of pseudoephedrine inadvertently produced in the fifth manufacture.
[112] Again, that claim is inconsistent with Mr Harding’s admissions of
2 September 2016 that 2,800 grams was manufactured. It is also inconsistent with the four other cooks with whom he was charged and who accepted 2,800 grams of methamphetamine was produced in this phase.
[113] The transcripts reveal that after Evanda Harding took possession of the 80 ounces on 14 November 2014 the cooks continued to manufacture
methamphetamine. The conversations between them and Mr Harding plainly reveal that a further 20 ounces of methamphetamine was produced. There is no evidence to support Mr Harding’s claim that the product was pseudoephedrine.
[114] In my view, Mr Harding’s change of stance is yet another example of his determination to use every opportunity to minimise the quantity of methamphetamine produced.
[115] Thus, in conclusion, I am satisfied that at least 6.5 kilograms of methamphetamine was produced over the six phases. While it is probable that the quantity was considerably greater I have adopted a conservative approach with the benefit of doubt operating very much in Mr Harding’s favour.
Conclusion
[116] It follows from this analysis I am satisfied beyond reasonable doubt that Mr Harding was, at all material times, the director and undisputed head of the Group’s manufacturing and distribution operation.
[117] Furthermore, I am also satisfied that at least 6.5 kilograms of methamphetamine was manufactured by the Group which Mr Harding headed.
Moore J
Solicitors:
Crown Solicitor, Whangarei
Mr Edgar, Auckland
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