R v Hutton HC Hamilton Cri-2005-419-379

[2005] NZHC 1222

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 379

THE QUEEN

Plaintiff

v

MARK HUTTON

Accused

Hearing:         19 May 2005

Appearances: R. Douch for Crown

G. Wilson for accused Judgment:  20 May 2005

JUDGMENT OF NICHOLSON J

On Disputed Facts

R V HUTTON HC HAM CRI 379 [20 May 2005]

[1]    Mark Hutton pleaded guilty and is to be sentenced on eight drug offences which came to light when the police searched his flat at 16 Charlemont Street, Hamilton on Sunday evening 18 January 2004.

[2]    One of the offences is the supply of the Class A drug methamphetamine. In the flat the police found cash in bank notes of $6505.

[3]    For the Crown, Mr Douch submitted that this money was the proceeds of Mark Hutton having sold methamphetamine and that, therefore, his culpability for the offence of supplying methamphetamine was as a commercial dealer. He submitted that the Court should sentence accordingly.

[4]    For Mr Hutton, Mr Wilson submitted that the money was received by Mr Hutton on behalf of his parents’ garage business and that the supply of methamphetamine, to which he pleaded guilty and for which he is to be sentenced, was only in the context of Mr Hutton’s personal use and sharing methamphetamine with others during that use. He therefore submitted that the culpability for supply was of only a low level of supply and that his client should be sentenced on that basis.

[5]    There was, therefore, a disputed fact hearing about the source of the cash which was found in Mr Hutton’s flat. The resolution of this disputed fact will have a considerable effect in deciding the appropriate sentence and will also affect whether an order is made forfeiting the money to the Crown.

[6]    At a disputed fact hearing, the Crown called two witnesses. They were police officers who gave evidence of the articles which the police found at the flat occupied by Mr Hutton during the police search on the evening of 18 January 2004. Mr Mark Hutton and his father Sidney Hutton gave evidence at the disputed facts hearing.

[7]    The pertinent police evidence was that on that Sunday evening, in the bedroom which was occupied by Mr Hutton in a flat at 16 Charlemont Street, the police found two bags, each of which contained cash. The first was a bag of the

brand name “Billibong”. It was on the floor of the bedroom. Inside it was a plastic bag and inside the plastic bag there were four bundles of bank notes. One contained a precise sum of $4000. Another contained a precise sum of $800. Another contained a precise sum of $750. Another contained a precise sum of $400. In total, in the four bundles, there was $5950.

[8]    Also in that Billibong bag there was a set of electronic scales. These were capable of measuring substances in gradients of .1 of a gram. There was evidence that this is an amount in which methamphetamine is commonly sold, it  being referred to as a “point”. Also in the Billibong bag were four cell phones and two pipes, the pipes being of the sort used for smoking methamphetamine.

[9]    The second bag was described as a “bum bag” and had the brand of “Designer Co”. It was also found on the floor of the bedroom. Inside it were bank notes totalling $410 in a rear pocket, and bank notes totalling $145 in a middle pocket; in all a total of $555. Also in this bum bag were eleven snaplock bags, many of which contained white powder substances.

[10]   Also on the floor in Mr Hutton’s bedroom, the police found a plastic Tupperware container. This contained over forty snaplock bags.

[11]   In evidence, Mr Sidney Hutton said that he was the proprietor of a motor garage in Hamilton, that he employed his son as a senior mechanic, his wife worked in the business as the office lady doing, amongst other things, the books and the banking. Mr Sidney Hutton said that he left the garage just after 5.00 on Friday evening 16 January last year and in doing so he expected that his son would collect money from three customers while he was away over the weekend.

[12]   Mr Mark Hutton said in evidence that on Friday 16 January last year he  spoke by telephone with a man in Auckland. This man he knew as Eddie Mitchell. This man had owed $2969 to the business since May 2003. He said that he arranged with this man for him to drive down from Auckland that night and meet him at an intersection near a dairy and pay the money owed. He said that he met that man at that spot at about 8.00 that Friday night. The man gave him $3000 which Mr Hutton

counted in the car and gave the man change of $31. He said that he did not take the money and put it in the safe which was at the business, but drove to Norton Mall to meet someone else there and then took the money back to his flat after that. I accept the evidence that the route which was taken from where the money was given to the mall could have easily passed Mr Hutton’s parents’ garage without any major deviation. Mr Hutton said that the distance to the garage from where the money was given was about two kilometres.

[13]   Mr Hutton said that the following day, Saturday 17^th, a person called Claire, who lived in Charlemont Street near Mr Hutton’s flat, drove to near his flat and paid him $2427 cash which she owed for car repairs. He said he counted this money and then took it into his flat and put it with the $3000 from the previous evening. He said that later that day, on the Saturday afternoon, he drove to Morrinsville and collected a further $632 in bank notes, this being an amount owed to the family business.

[14]   Mr Hutton said that that Saturday night he started to sort the cash which he had received into denominations to help his mother, but he did not finish doing this because he was tired. Nothing more was done with that money before the police found it in Mr Hutton’s flat the next night. Mr Hutton said that the balance of about

$500 which the police found in the flat was from his wages.

[15]   Mr Hutton explained the presence of drug related articles found in the bags and in the room by saying that they were for his personal use of taking methamphetamine. He said that the scales were to measure the amounts which he took so that he would not over-dose when he took methamphetamine and that the bags were to put the measured amounts in for his own use. He said that of the four cell phones, two were not working and of the other two he used one for business and one for personal use.

[16]   Having regard to the amount and form in which the money was found by the police at Mr Hutton’s flat, and the close proximity of equipment commonly used in supplying methamphetamine on a commercial basis, particularly the electronic scales and small plastic bags, I find that there is very strong circumstantial proof that the money was the proceeds of selling methamphetamine. I have considered the

evidence of Mark Hutton and his father carefully, but reject the evidence of Mark Hutton as to the source of the money found in his flat as untrue. Mark Hutton’s evidence that he received over $6000 in bank notes on behalf of the family garage business on the Friday and the following Saturday is, in my view, implausible and false.

[17]   There are many implausible factors which, in totality, cause me to reach that conclusion. First, that a person would drive especially from Auckland to Hamilton to pay nearly $3000 for work done to his vehicle at a garage in Hamilton, and arrange for the payment to be made on a street corner near the garage and not at the garage.  If there was nothing clandestine about the relationship leading to the payment of the money there would have been no reason to meet a short distance from the garage to pay the money rather than at the garage itself.

[18]   Next, that Mark Hutton took that amount of cash to his home rather than put  it in the safe which was in the garage, which was near where he got the money and which was easily on his way to his next engagement.

[19]   Next, the coincidence that another customer paid over $2400 in cash to Mark Hutton the next morning and that this was also done on the street.

[20]   Next, that Mark Hutton did not make any effort to put the $5500 or so cash which he had into the business safe, but took it home with him, along with a further

$600 which he said he received that Saturday afternoon. So the situation was that he had in his home, according to his evidence, some cash of over $6000 rather than having it in the safety of the garage safe.

[21]   The next implausible and incredulous factor is what Mr Hutton said he did with the money. He did not leave it in the form in which he allegedly received it, namely in three bundles of money, one for each customer. This would have enabled him simply to have given that money to his mother on the Monday, or leave it for  her with a note, it being clear where the source of the money had been. However, instead, he said that later on the Saturday he put all the money together by mixing it

up and attempting to sort it into denominations, this apparently to help his mother. This he failed to complete.

[22]   I find it puzzling, and indeed incredulous, that having failed to finish putting the money into denominations as he said happened, he then counted the bulk of the bank notes into four precise bundles. For one bundle he counted and put together exactly $4000. In another bundle $800. In another bundle $750 and in  another bundle $400. If he had been attempting to put the banknotes into denominations for his mother, how much easier for him to have done and completed that rather than,  for some unexplained purpose, make up bundles of money into precise amounts.

[23]   Because of the combination of implausible factors which I have mentioned, and also from the impression which I got from Mark Hutton and the manner  in which he gave evidence and the deficiencies of his answers on many aspects, I reject his evidence on the disputed issue of the source of the money as being untrue. I find proved beyond reasonable doubt that the bank notes totalling $6505 which the police found in the two bags in Mark Hutton’s bedroom were money which Mark Hutton had received for selling methamphetamine. I will sentence and make a forfeiture order on that basis.

C M Nicholson J