R v Kupkovic
[2014] NZHC 1645
•15 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2012-092-005703
CRI-2012-092-011275
CRI-2012-092-005957 [2014] NZHC 1645
THE QUEEN
v
ANDREI MIKOYAN KUPKOVIC LEIGHTON KENNETH HOE TUAN ANH HO
Hearing: 25, 26 and 27 November 2013 and 17 and 18 March 2014 Counsel:
JLS Shaw for Crown MA Edgar for Kupkovic AG Speed for Hoe
AM Rice/PK Hamlin for Ho
Judgment:
15 July 2014
JUDGMENT OF BREWER J
This judgment was delivered by me on 15 July 2014 at 10:00 am pursuant to Rule 11.5 High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel: Meredith Connell (Auckland) for Crown Mark Edgar (Auckland) for Kupkovic Andrew Speed (Auckland) for Hoe
Philip Hamlin (Auckland) for Ho
R v KUPKOVIC, HOE & HO [2014] NZHC 1645 [15 July 2014]
Introduction
[1] The prisoners pleaded guilty to one representative count of manufacturing methamphetamine between 1 November 2011 and 1 May 2012.1 The comity of the Crown and the prisoners ceased at this point.
[2] The sentences the prisoners will receive under the count depend, to a large extent, on the quantity of methamphetamine manufactured. The Crown’s case is that a lot of methamphetamine was manufactured by the prisoners. Mr Shaw contends:2
3.5The table below details the methamphetamine yield from the various manufactures which the Crown alleges each of the Prisoners were involved in. The calculations have been adjusted (from the table in the previous Crown memorandum) bearing in mind the matters noted above.
Number of manufactures Yield from one set
(50% conversion)
Yield from two sets
(50% conversion)
Kupkovic:
32 manufactures
32 x 45 = 1,440g 32 x 90 = 2,880g Ho:
24 manufactures
24 x 45 = 1,080g 24 x 90 = 2,160g Hoe:
11 manufactures
11 x 45 = 495g 11 x 90 = 990g
3.6Having regard to all relevant factors, the Crown position is that the appropriate methamphetamine yield figure for each of the Prisoners is as follows:
(a) Kupkovic – approximately 1.44 to 2.88 kilograms
(b) Ho – approximately 1.08 to 2.16 kilograms. (c) Hoe – approximately 495 to 990 grams.
[3] These yield figures, at the lower end, would bring Mr Kupkovic and Mr Tuan
Ho into band four of the tariff case of R v Fatu3 and Mr Leighton Hoe into the upper end of band three. At the higher end all three prisoners would be well into band four.
1 There are other counts in the indictment to which pleas of guilty have been entered, but there is no dispute about their factual underpinning.
2 Crown memorandum in relation to disputed facts hearing (quantum), dated 18 March 2014.
3 R v Fatu [2006] 2 NZLR 72 (CA) at [43].
[4] The prisoners, however, submit that the quantity of methamphetamine they manufactured is far less. Mr Kupkovic concedes he manufactured 349 grams (band three), Mr Tuan Ho concedes 600 grams (band four), and Mr Leighton Hoe denies any direct involvement with manufacturing methamphetamine. I infer Mr Hoe pleaded guilty on the basis that on a very few occasions he was a party to manufacturing methamphetamine through supplying caustic soda for use in the process.
[5] The onus of proving the quantity of methamphetamine manufactured is on the Crown. The standard of proof is the criminal standard of beyond reasonable doubt. Whether the Crown can discharge its onus depends on the inferences which can be drawn properly from intercepted communications in the context of surrounding evidence. It has fallen to me to decide this question through the medium of a disputed facts hearing.
Overview The evidence Count 1
[6] Count 1 is a representative count in the sense that it is intended to cover all of the manufacturing of methamphetamine by the prisoners in the period 1 November
2011 to 1 May 2012. It is not representative in the sense that would be required for a count going to a jury on a trial. In a trial, a count can be representative only if it is not possible to distinguish separate incidents of offending. Here, the Crown alleges
33 separate incidents of manufacturing.4 Not all of them involved all of the
prisoners. I have to consider each allegation separately in the same way as I would if each allegation was the subject of a separate count.
[7] The Crown’s case is that Mr Kupkovic is the lead manufacturer. Mr Tuan Ho is said to be his principal assistant and a source of precursor chemicals. Mr Leighton Hoe is described as being involved to a lesser degree. He is said to have sourced
precursor substances and to have assisted with some of the incidents of manufacture.
4 In the course of the hearing this number was reduced from 35.
It was he who obtained access to a shed on a rural property at Berwyn Avenue for the principal manufacturing operation.
[8] The Crown’s case is that during the period November 2011 to February 2012 all of the prisoners were involved in the manufacture of methamphetamine at Berwyn Avenue, although not all were necessarily present at the same time.
[9] On 23 February 2012, one of the manufactures resulted in an explosion which injured Mr Leighton Hoe. The Crown alleges that there were two more manufactures at the address up to and including March 2012 and that thereafter the prisoners stopped using the Berwyn Avenue address and went separate ways.
[10] The Crown’s case is that in March and April 2012, Mr Kupkovic manufactured methamphetamine at his address in Roscommon Road. When the Police came to that address to arrest Mr Kupkovic, they found him in the process of manufacturing methamphetamine. Two “sets” of Contac NT were found in his possession. Contac NT is a source of pseudoephedrine, the chemical which is converted to methamphetamine in the manufacturing process.
[11] Mr Tuan Ho and Mr Leighton Hoe are said to also have manufactured methamphetamine together at Mr Leighton Hoe’s address at Wallace Road. Mr Tuan Ho accepts that on one occasion he manufactured methamphetamine on his own account, but that incident is not included in the count I am considering.
[12] A complication is that Mr Tuan Ho gave a lengthy interview to the Police in which he admitted to participating in five manufactures of methamphetamine. Mr Ho said that each of the first two manufactures involved one set of Contac NT and each of the subsequent three occasions used two sets of Contac NT.
[13] I have to bear in mind that I can use Mr Tuan Ho’s interview with the Police only as evidence against him. It is possible for me to find that Mr Ho manufactured greater quantities of methamphetamine than the other prisoners, notwithstanding that Mr Ho told Police that the other prisoners were with him and that Mr Kupkovic had the dominant role.
Submissions on behalf of Mr Kupkovic
[14] Mr Edgar for Mr Kupkovic submits that I need to be sure about the level of manufacturing at Berwyn Avenue. That is the site of the principal allegations against Mr Kupkovic.
[15] Mr Edgar submits that the Crown places emphasis on references in the intercepted communications to “work” or “going to work”. The Crown’s invariable position is that these references are code for manufacturing methamphetamine. Mr Edgar concedes that on occasion this may well be correct. But it is not always correct. There is evidence of legitimate work being done by the prisoners at Berwyn Avenue. Mr Edgar’s point is that I must be sure about an inference before I can draw it against the interests of his client. I must not speculate and, if more than one inference is equally available on the evidence, I must draw the inference favourable to Mr Kupkovic.
[16] For example, a reference to “going to work” could mean going to a place of legitimate work. In this regard, Mr Edgar relies on the evidence of the Crown’s witness, Ms Ka’ai, to the effect that the prisoners, separately and together, on occasions worked on cars at the Berwyn Avenue property, assisted Ms Ka’ai with chores around the property, and sometimes met to smoke methamphetamine.
[17] Mr Edgar also submits that where there is evidence of smoking methamphetamine, I need to be sure that an inference cannot be drawn that manufacturing was to produce the small amounts necessary to satisfy their personal needs. Finally, Mr Edgar submits that it can be taken from Mr Kupkovic’s evidence that on occasion there were simple social gatherings at the address where people discussed their domestic problems.
[18] In summary, Mr Edgar’s submission is that references to “work” need not be references to manufacturing methamphetamine. They might be references to simply going to a place of work for a variety of reasons. This, Mr Edgar submits, dilutes the Crown’s method of calculating the overall quantity of methamphetamine manufactured.
[19] Mr Edgar’s next point is that it cannot always be inferred from the intercepted communications that “going to work” in each case meant a completed manufacture of methamphetamine. There is uncertainty, Mr Edgar submits, as to whether the intercepted communications are referring to a completed manufacture or to a series of stages in a particular manufacture. In other words, there might be more than one visit to the Berwyn Avenue address before a manufacture is completed.
Mr Edgar relies on the evidence of the ESR scientist called by the Crown5 to the
effect that the process of manufacturing methamphetamine can be divided into three distinct stages.
[20] Mr Edgar takes issue with Mr Shaw’s submission that I can infer the ready availability of Contac NT. In Mr Edgar’s submission, an absence of evidence of the prisoners seeking Contac NT is not ground for an inference that it was readily available. Mr Edgar submits, further, that even if Contac NT is readily available, that does not found an inference that manufactures used sets of Contac NT on each occasion.
[21] Mr Edgar agrees with Mr Shaw that iodine and hypo-phosphorous acid were difficult to obtain. If only small amounts could be obtained then only small amounts of methamphetamine could be manufactured, regardless of how much Contac NT was available. Mr Edgar points to the evident difficulty that the prisoners had in procuring those precursor chemicals and adds that Mr Kupkovic apparently did not always have sufficient money to buy the quantities he wanted. Mr Edgar submits that intercepted communications during February, March and April 2012 reveal that sometimes one chemical was traded for another. For example, iodine being traded for hypo-phosphorous acid. This would result in the prisoners having a smaller quantity of iodine and thus able to manufacture a smaller amount of methamphetamine.
[22] Mr Edgar also makes the point that at times, it would seem from the intercepted communications, the wrong chemicals were sourced. Obtaining potassium permanganate instead of iodine resulted in problems. Further, it cannot be
assumed that the quality of the precursor chemicals obtained was always satisfactory.
5 Erina Jane Mayo.
[23] Mr Edgar invited me not to draw an adverse inference from the $27,000 in cash found at Mr Kupkovic’s property when it was searched by the Police. In Mr Edgar’s submission, it would be speculative to use that sum of money as a measure of the scale of manufacture by Mr Kupkovic. I do not accept that submission. From the evidence I heard, manufacturing methamphetamine by these prisoners was not a low overhead operation. A significant amount of money was required to be paid for the precursor substances and there were further costs in the manufacturing of methamphetamine and then distributing it. My finding is that the
$27,000 was the amount of money required for the next full set of purchases, with possibly an aspect of profit. However, as I will discuss later, since the money was saved from the profits of previous manufactures, it does give an indication of the scale of the manufacturing.
[24] Mr Edgar does not attack specifically the Crown’s calculation of the amount of methamphetamine manufactured by Mr Kupkovic for the purposes of count 1. His submission is that the onus is on the Crown to establish the quantity and that it has failed to do so.
Submissions on behalf of Mr Tuan Ho
[25] Mr Hamlin on behalf of Mr Ho adopts Mr Edgar’s criticisms of the methodology urged on me by the Crown. Mr Hamlin seeks to put his client’s admissions to the Police into perspective. He submits that the evidence establishes that Mr Ho was very much a secondary party, a mere assistant. Further, he has accepted that he was only involved on five occasions.
[26] Mr Hamlin attempted to persuade me that the knowledge of the manufacturing process evident in Mr Ho’s account to the Police cannot be said to reflect his knowledge at the commencement of his involvement with the other prisoners. He might well, initially, have been quite ignorant as to what was going on, and only towards the end of his involvement did he acquire the knowledge that he had at the time of the Police interview. It seems that Mr Hamlin was prepared to accept that Mr Ho was involved in the manufacture of 600 grams of
methamphetamine overall, but now that the Crown has conceded a 50 percent yield then I should take it that Mr Ho is really only accepting responsibility for 360 grams.
[27] However, regardless of what Mr Ho has accepted, or what the Crown has conceded, I have to draw inferences from all of the evidence, and for Mr Ho that includes his admissions to the Police. I have to see how those admissions relate to the other evidence, including the evidence of intercepted communications.
[28] Mr Hamlin submits, on this basis, that the evidence does no more than show that Mr Ho was a low level dealer and a user of methamphetamine. Mr Hamlin submits that although the Crown alleges that Mr Ho had involvement in 24 instances of manufacturing, a close analysis does not bear this out. There is a spectrum of evidential strength implicating Mr Ho in particular manufactures, going from weak to strong. Mr Hamlin submits that in only four cases is there a strong inference that Mr Ho is present. He submits that where inferences for presence are weak then the evidence does not amount to proof beyond reasonable doubt. Mr Hamlin accepts that overall there is a pattern of Mr Ho being involved on more than five occasions, but only as a helpmate. I will consider Mr Hamlin’s particular submissions when I analyse the alleged incidents of manufacture.
Submissions on behalf of Mr Leighton Hoe
[29] Mr Speed also adopts, on behalf of Mr Hoe, the submissions of Mr Edgar on the issue of quantity. Mr Speed’s principal submission on behalf of Mr Hoe is that he had a limited involvement in supplying caustic soda to Mr Kupkovic and although Mr Speed accepts that Mr Hoe was present at Berwyn Avenue on numerous occasions, that was because Mr Hoe was a heavy user of methamphetamine and had a personal, but not commercial, interest in the product being manufactured.
[30] Mr Speed accepts that the evidence shows that on a couple of occasions Mr Hoe “was watching things”. He agrees that Mr Hoe was not a mere observer, at least not on all occasions. The point that Mr Speed emphasises in his submissions is that the evidence does not show a clear involvement in the actual manufacturing of the methamphetamine. For example, on manufacture 15 he was a lookout.
[31] Mr Speed makes clear that his client does not accept that manufacturing took place at Wallace Road. He submits that the communications attributed to Mr Senior are not admissible against Mr Hoe. In Mr Speed’s submission, it is not clear whether Mr Senior is a part of the joint enterprise to manufacture such that the co- conspirator’s rule applies.
[32] Mr Speed refers to manufacture 25 which relates to the explosion. At that point, Mr Hoe was, to some degree, incapacitated and so would have had little to no part to play in manufactures 26, 27 and 28. After the explosion, Mr Speed submits, it can be taken that Mr Hoe had a diminishing role. An example is manufacture 28 with the reference to Mr Hoe handing over the bucket containing the necessaries for the manufacture.
[33] With reference to the relevance of the two sets of Contac NT found at the Roscommon Road address of Mr Kupkovic, Mr Speed submits that an equally available inference is that after the explosion Mr Kupkovic decided to manufacture methamphetamine on a greater scale than before.
[34] Mr Speed relies on the evidence of Ms Ka’ai to found his submission that Mr Hoe had a long term involvement with her address and had legitimate work to do there.
The co-conspirators rule
[35] The intercepted communications relied on by the Crown are not always the communications of the prisoner against whom they are sought to be used. Often, they are communications between the other prisoners or between another prisoner and a third party.
[36] There is no difficulty in using an intercepted communication as evidence against a prisoner who took part in the communication. But if the prisoner did not, then such use would not normally be permitted because it would infringe the rule against hearsay. The Crown seeks to use them in this case because it contends that all the prisoners were in a criminal conspiracy or joint enterprise with each other and the communications were in furtherance of that conspiracy or joint enterprise. The
conspiracy or joint enterprise was to manufacture methamphetamine for the purpose of supplying it to others.
[37] There is no dispute that the prisoners, at different times and to different degrees of involvement, conspired with one another to manufacture methamphetamine in commercial quantities. The disputes relate to involvement in the particular conspiracies which the Crown alleges actually resulted in the manufacture of methamphetamine. There has been no assertion by any of the prisoners that the co-conspirators rule does not apply to any of the communications said by the Crown to evidence particular incidents of manufacture in which they are involved. The exception is the point raised by Mr Speed in respect of messages involving Mr Senior. I will address this later.
[38] Nevertheless, I have to be mindful of how I can use the intercepted communications in determining issues of involvement with particular incidents of manufacture and issues of quantity.
[39] There are three threshold issues that have to be determined by a Judge before co-conspirators’ statements can be used against another:6
(a) That there was a conspiracy or joint enterprise of the type alleged; and
(b) That the accused was a member of that conspiracy or joint enterprise;
and
(c) That the statements were made and/or the acts were done in furtherance of the conspiracy or joint enterprise.
[40] One further, and important, point is that the existence of the conspiracy must be proved by independent evidence, not hearsay. That is to say, the statements which are sought to be admitted pursuant to the co-conspirators rule cannot themselves be
relied upon to prove participation in the conspiracy. An exception to this is where a
6 R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [11], Collins v R [2010] NZSC 13 at
[2].
particular statement can be used to show knowledge or state of mind. That is because such use would not be hearsay.
[41] In determining whether an accused was a member of the conspiracy, it is sufficient if the Crown has shown that there is reasonable evidence that there was a conspiracy and that it involved the accused:7
The phrase “reasonable evidence” connotes evidence which of itself would not sustain a verdict of guilt but which is of such a nature that the Judge considers it safe to admit the evidence of a co-conspirator.
[42] In general terms, it is clear from the intercepted communications in which each prisoner took part, and from the surrounding evidence, that the prisoners, in different combinations, manufactured methamphetamine from time to time. Each incident of manufacture was preceded by a process of communication by which the prisoners involved reached agreement to carry out the manufacture
[43] Accordingly, I am satisfied that the first two threshold issues are satisfied. I am satisfied also that the communications on which the Crown seeks to rely to prove each incident of manufacture were made in furtherance of the conspiracy or joint enterprise. The third threshold issue is satisfied.
[44] In the absence of challenge, and because I think the availability of the co- conspirators rule is apparent, I will not go into a discussion of each relevant communication.
The intercepted communications
MAN 1 (Kiev 0111a, 1 November 2011) – Kupkovic and Ho at Berwyn Avenue
[45] Mr Edgar, for Mr Kupkovic, does not challenge directly that manufacture occurred. The issue is what quantity was manufactured.
[46] Mr Hamlin submits that I cannot be sure that Mr Tuan Ho was present during the manufacture.
7 R v Messenger, above n 6, at [12].
[47] I accept that the reference by Mr Kupkovic in the text sent at 1:46 am to being “at work” refers to the manufacture of methamphetamine. Mr Kupkovic invited Mr Ho to “come over if you want”. I accept that the messages, taken together, mean that Mr Ho did eventually meet Mr Kupkovic at the Berwyn Avenue address for the purpose of manufacturing methamphetamine. I accept the Crown’s
submission:8
Ho is involved in supplying methamphetamine over the following several days (Kiev 0111c, Kiev 0311a, Kiev 0311b, Kiev 0611a), thus providing support for the proposition that there had been a completed manufacture.
[48] I conclude that on or about 1 November 2011, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 2 (Kiev 0611b, 6 November 2011) – Kupkovic and Ho at Berwyn Avenue
[49] Mr Edgar does not dispute that a manufacture occurred. Again, the issue is quantity.
[50] Mr Hamlin submits that it is not safe for me to conclude that Mr Ho actually went to Berwyn Avenue that night.
[51] I infer from this exchange of text messages that Mr Kupkovic and Mr Ho met at Berwyn Avenue some time after 11:00 pm on 6 November 2011. The initial question by Mr Kupkovic to Mr Ho, “u want to come down to work”, founds the inference that meeting at that address at that time of night was for the purpose of manufacturing methamphetamine.
[52] Mr Ho admitted to the Police that he was involved in the manufacture of methamphetamine on five occasions. In later incidents it is apparent if an invitation to come and work is refused. In this incident, at 10:57 pm, Mr Ho tells Mr Kupkovic, “Ce u sn”.
[53] I conclude that on or about 6 November 2011, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
8 Crown memorandum in relation to the disputed facts hearing, at 4.4.
MAN 3 (Kiev 1111a and 1211a, 12-13 November 2011) – Kupkovic and Ho at
Berwyn Avenue
[54] Mr Edgar submits that the text messages are clear that on this occasion the two men did not meet at Berwyn Avenue. Further, it is unclear whether there was a manufacture.
[55] Mr Hamlin submits that although Mr Ho agrees to join Mr Kupkovic in manufacturing at Berwyn Avenue, on this occasion he did not do so.
[56] I infer from Kiev 1111a that Mr Ho has formed the intention to go to a person referred to as “KT” for the purpose of obtaining a precursor substance or substances.9 At 4:11 pm, Mr Ho asks Mr Kupkovic for money so that he can
purchase the precursor substance or substances.10
[57] The next day, 12 November 2011, Mr Kupkovic obtains permission from Ms Ka’ai, in a text exchange between 8:00 pm and 9:00 pm “to come to work tonight need to start new job”. In the context, this is announcing a plan to again manufacture methamphetamine. At 9:23 pm, Mr Ho tells Mr Kupkovic that he will see him shortly.
[58] The following evening, 13 November 2011, Mr Kupkovic is still “at work”. Drawing on the evidence of Ms Mayo as to the manufacturing process, I infer that there is still work to be done to complete the extraction of methamphetamine. Mr Ho, at 10:19 pm, tells Mr Kupkovic that he will join him. However, he later changes his mind and apologises. I infer that methamphetamine was manufactured on this occasion and I infer from Kiev 1411a and Kiev 1411b that both Mr Kupkovic and Mr Ho were involved in supplying methamphetamine the following day. This is consistent with there being a manufacture the previous day.
[59] In my view, the evidence establishes that Mr Kupkovic and Mr Ho worked together to be in a position to manufacture methamphetamine. The manufacturing
9 From other messages, it is apparent that “KT” is a source of precursor substances and that
Mr Ho uses “KT” for that purpose.
10 I take the reference to “document” to be a reference to money.
commenced on 12 November 2011. Mr Ho participated. Mr Kupkovic completed the manufacture on the evening of 13 November 2011, in the absence of Mr Ho.
[60] I conclude that on or about 12 November 2011, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 4 (Kiev 2011a, 20-21 November 2011) – Kupkovic and Hoe at Berwyn Avenue
[61] Mr Edgar accepts there was a manufacture, but only on a very limited scale. He submits the evidence shows that Mr Kupkovic and Mr Hoe had run out of methamphetamine to smoke themselves, so Mr Kupkovic went to Berwyn Avenue to see if he could get more from the left over “soup” from the previous manufacture.
[62] Mr Speed for Mr Hoe submits that the evidence does not establish beyond reasonable doubt that Mr Hoe was at the address for the purpose of manufacturing. He had legitimate business reasons for being there, and carried out legitimate work in the area adjoining the place where the manufacturing occurred.
[63] At 2:30 pm, Mr Kupkovic asks Ms Ka’ai whether he may “stop over”. He waits until a visitor has gone and when, at 4:41 pm, Ms Ka’ai reports “algud 2 go here m8”, Mr Kupkovic immediately replies that he will “head that way in about
15 min”. From the texts which follow, I infer that Mr Leighton Hoe makes contact with Mr Kupkovic and joins him at Berwyn Avenue. At 9:32 pm, Mr Kupkovic asks Mr Hoe whether he is “coming back tonight”. Mr Hoe replies, “on way back now”.
[64] At 5:31 am the following morning, Mr Kupkovic, in a text to Mr Tuan Ho, reports, “I just finished work. I can stop in”. I take that to mean there has been a manufacture of methamphetamine.
[65] I am reinforced in this conclusion by Kiev 2411a, which is a series of text communications between Mr Kupkovic and Erica Dutton. It is quite clear that Ms Dutton is looking to buy a significant amount of methamphetamine from Mr Kupkovic and he is ready to deal. In other words, he has a product to sell.
[66] My conclusion is that Mr Kupkovic manufactured a significant amount of methamphetamine. The length of time he was at the address and his dealings with Ms Dutton subsequently do not point to a limited extraction of a small amount of methamphetamine for personal use.
[67] I also conclude that Mr Kupkovic was assisted by Mr Hoe. Returning to the address after 9:32 pm is inconsistent with innocent coincidence.
MAN 5 (Kiev 2711a and Kiev 2811a, 27-30 November 2011) – Kupkovic, Ho and
Hoe at Berwyn Avenue
[68] Mr Edgar limits his submission to quantity.
[69] Mr Hamlin submits that although Mr Ho arrives to meet Mr Kupkovic, he is sent home and has no involvement with the actual manufacture.
[70] Mr Speed submits that there is no evidence that Mr Hoe took part in the manufacture.
[71] From the earlier communications in this series involving Mr Kupkovic, Mr Leighton Hoe and Mr Tuan Ho, I conclude that Mr Kupkovic is seeking to obtain substances required for the manufacture of methamphetamine. I infer that “KT” is eventually able to supply what is needed. At 12:53 pm the following day,
30 November 2011, Mr Kupkovic arranges with Ms Ka’ai to go to Berwyn Avenue to “do some work”. Mr Tuan Ho and Mr Leighton Hoe are then enlisted for further assistance including obtaining chemicals needed to manufacture. At 10:57 pm, Mr Leighton Hoe asks Mr Kupkovic whether “u want a hand bro?” Mr Kupkovic’s reply, at 11:27 pm, is “No problem bro. Na didn’t find it. Just using the one I got but only 60 percent. Hope its okay. I will know shortly in about an hour or so”. In the context of the preceding text messages, I infer that the reference to “60 percent” is a reference to the concentration of caustic soda being used in the manufacture of methamphetamine. I infer that on this occasion Mr Kupkovic has manufactured methamphetamine and that by this time the process is nearing completion.
[72] I conclude that on or about 30 November 2011, Mr Kupkovic manufactured methamphetamine at Berwyn Avenue. Mr Ho, whether present or not, was a party to that manufacture through his involvement in obtaining precursor substances.
[73] Mr Hoe evidently knows that Mr Kupkovic is manufacturing. He offers to help, but there is no evidence that he actually does. Technically he might be a party by encouraging Mr Kupkovic, but no-one has suggested that. Accordingly, for sentencing on this representative charge, I will not hold Mr Hoe culpable for this manufacture.
MAN 6 (Kiev 0112a, 1-3 December 2011) – Kupkovic and Ho at Berwyn Avenue
[74] Mr Edgar submits that the text messages show that Mr Kupkovic did go to Berwyn Avenue in this period. He does not dispute that Mr Kupkovic manufactured methamphetamine, but challenges the Crown’s contention as to quantity.
[75] Mr Hamlin submits that Mr Ho is shown to be prepared to assist
Mr Kupkovic but it is clear that, because of domestic issues, he does not.
[76] From the earlier text messages, I infer that Mr Kupkovic is in the process of manufacturing methamphetamine on 1 December 2011. Mr Tuan Ho is involved in that he knows where Mr Kupkovic is and arranges to deliver something to him the following day. In context, I infer that the thing to be delivered is related to the manufacture of methamphetamine.
[77] At 1:30 pm on 2 December 2011, in a text message, Mr Kupkovic tells Mr Ho that he is going to work soon to “finish up the rest”. At 2:54 pm that same day, Mr Ho’s supplier of precursor substances, “KT”, confirms that he has the “balls” that Mr Ho wanted. The evidence is that iodine comes in the form of balls, and this is the inference I draw. There is a subsequent meeting with Mr Kupkovic to “get some of the things we need”, and Mr Kupkovic arranges with Ms Ka’ai for access to the Berwyn Avenue address later that evening. At 11:19 pm, Mr Kupkovic informs Mr Tuan Ho that he is “at work now”.
[78] At 5:46 pm on 3 December 2011, Mr Tuan Ho advises Mr Kupkovic that he is on his way and will see him soon. At 8:10 pm, Mr Kupkovic tells Mr Leighton Hoe, “I’m just finishing up the last of the work. Leaving now. Been here all night”.
[79] I conclude that Mr Kupkovic, with the assistance of Mr Tuan Ho, completed a manufacture of methamphetamine over this period. I accept the Crown’s submission that this is supported by inferences that can be drawn from later exchanges that Mr Kupkovic was in the market to supply methamphetamine over the days that followed.11
[80] Mr Hamlin is correct that Mr Ho did not go to the Berwyn Avenue address to assist Mr Kupkovic on 2 December 2011. But, in my view, he is clearly a party to the manufacture and on 3 December 2011 went to the address while the manufacture was in progress.
MAN 7 (Kiev 0712a, 7 December 2011) – Kupkovic and Ho at Berwyn Avenue
[81] Mr Edgar submits that there is no evidence of manufacture.
[82] Mr Hamlin agrees with Mr Edgar’s submission and adds that there is
insufficient confirmation of any involvement by Mr Ho.
[83] The Crown’s case is that from a text sent by Mr Kupkovic to Mr Tuan Ho at
8:57 pm on 7 December 2011 (“Okay bro I’m just cleaning up at work, I’m leaving now”), I can infer that Mr Kupkovic has completed another manufacture. The Crown seeks to reinforce this inference by referring to the beginning of the text message exchange where, at 8:22 pm, Mr Kupkovic communicates to Mr Tuan Ho that he will go to Mr Ho’s place because “if u bring kit to mine Jaz will go silly on us bro, better you know what I mean”. In the Crown’s submission, the exchange of texts can be inferred to mean that a manufacture has taken place at Berwyn Avenue, after which Mr Ho has removed the “kit” and Mr Kupkovic has remained at the
address to clean up after the manufacture.
11 Kiev 0312a, Kiev 0512a.
[84] In my view, this falls into the category of highly suspicious and very probably correct. I can say that given the context of the proven activities of Mr Kupkovic and Mr Tuan Ho and their relationship with each other. However, I am left with a reasonable doubt as to whether this exchange refers to a separate act of manufacturing methamphetamine. I will not include it in my basis for sentencing.
MAN 8 (Kiev 1412a, 14 December 2011) – Kupkovic and Hoe at Berwyn Avenue
[85] Mr Edgar’s submission is that Mr Kupkovic and Mr Hoe had legitimate reasons for being at Berwyn Avenue as well as illegitimate reasons. He refers to the evidence of those legitimate work activities and submits that it is not possible to draw inferences displacing the reasonable possibility that their presence at the address was for legitimate purposes.
[86] Mr Speed submits that it is not apparent from the evidence what, if anything, was manufactured.
[87] This incident commences with Mr Kupkovic arranging with Ms Ka’ai to go to the Berwyn Avenue address. At 1:15 pm, he sends the following text message to Mr Leighton Hoe:
Bro I’m heading over our mates place and getting started. I will need to prep the floor before they polyurethane it. Can u bring the cleaner over pls thanks.
[88] In the Crown’s submission, this is a coded reference to the manufacture of methamphetamine, with the reference to “cleaner” being a reference to a solvent used in the manufacturing process. Two days later, Mr Kupkovic appears to be in the market to supply methamphetamine.12
[89] In context, I accept the Crown’s submission. There is no evidence that Ms Ka’ai ever engaged Mr Kupkovic to do any floor preparation so that it could be polyurethaned.13 I take this exchange of text messages as evidencing the
manufacture of methamphetamine.
12 Kiev 1612a.
13 Ms Ka’ai denied it (notes of evidence, at 18).
[90] I conclude that on or about 14 December 2011, Mr Kupkovic and Mr Hoe manufactured methamphetamine at the Berwyn Avenue address.
MAN 9 (Kiev 1712a, 17 December 2011) – Kupkovic and Ho at Berwyn Avenue
[91] The submission on behalf of Mr Kupkovic is that the text messages do not establish that Mr Kupkovic gained access to the address.
[92] Mr Hamlin submits that there is an inference available that Mr Ho was present as he said he would see Mr Kupkovic there. However, that is insufficient evidence on which to be sure that there was either methamphetamine manufactured on this occasion or, if there was, that Mr Ho had a culpable involvement.
[93] The text message string commences with Mr Kupkovic telling Mr Tuan Ho that he is on his way “to work” and Mr Tuan Ho says that he will see Mr Kupkovic there. Mr Kupkovic then obtains permission from Ms Ka’ai “to do some work”.
[94] Given that this exchange occurs shortly after 5:00 pm, and given the association between Mr Kupkovic and Mr Tuan Ho, I infer that this meeting was for the purpose of manufacturing methamphetamine.
[95] I accept also the Crown’s submission that the following day Mr Kupkovic appears to be back in the business of supplying methamphetamine.14
[96] I conclude that on or about 17 December 2011, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 10 (Kiev 2212a, 22-23 December 2011) – Kupkovic and Ho at Berwyn Avenue
[97] Mr Edgar on behalf of Mr Kupkovic accepts that the manufacture of methamphetamine took place. He challenges only quantity.
14 Kiev 1812a, noting that Kiev 0312a has the same phone number.
[98] Mr Hamlin accepts there is an inference that Mr Ho was present but submits there is no other confirmation of manufacturing or of Mr Ho’s involvement in any manufacturing.
[99] At 7:13 pm on 22 December 2011, Mr Kupkovic asks Ms Ka’ai whether he can go to her Berwyn Avenue address to “do some things”. At 11:58 pm, Mr Kupkovic sends a text message to an unknown recipient:
I’m at work at moment. As soon as I’m done I will text u ok.
[100] Mr Kupkovic, just after midnight, exchanges a number of messages with Mr Tuan Ho in the context of going to the Berwyn Avenue address. There is then a gap in the communications from 2:25 am until 8:10 pm. At that time, the unknown person asks Mr Kupkovic, “u kncked of work yet?” The reply, at 8:38 pm, is “Yep just. I’m just going to clean up then I’ll give u a text. Give me about 30 min”.
[101] I conclude that on or about 22 December 2011, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 11 (Kiev 2712b, 27-28 December 2011) – Kupkovic and Ho at Berwyn Avenue
[102] The submission on behalf of Mr Kupkovic is that the text messages establish that he did not arrive at the Berwyn Avenue address until 11:56 pm. There is no evidence that he was involved in the manufacture of methamphetamine on this occasion.
[103] Mr Hamlin accepts there is an inference available that Mr Ho was present but there is no other evidence of manufacturing, nor of Mr Ho’s involvement in any manufacturing.
[104] I infer from the text conversation that Mr Kupkovic and Mr Ho meet at the
Berwyn Avenue address (“at work”) close to midnight on 27 December 2011. On
28 December 2011 at 12:23 pm, “KT” tells Mr Ho, “My bro my mate wnts 14”. From Mr Ho’s response, it can be inferred that he is not able to supply KT immediately but he promises to let KT know when he can. I accept the Crown’s
submission that the remaining messages in Kiev 2812a indicate that the supply of methamphetamine has taken place.
[105] I find that on or about 28 December 2011, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 12 (Kiev 0601a, 6 January 2012) – Kupkovic and Ho at Berwyn Avenue
[106] Mr Edgar does not dispute that methamphetamine was manufactured. He challenges quantity.
[107] Mr Hamlin accepts there is an inference that Mr Ho was present. Again, he submits there is no evidence of manufacturing or of Mr Ho’s involvement in any manufacturing.
[108] At 40 minutes past midnight on 6 January 2012, Mr Kupkovic asks Ms Ka’ai for permission to come to the Berwyn Avenue property. Permission is given. Mr Kupkovic then contacts Mr Tuan Ho and says, “Bro stop on your way to get some of those things from gas station if you can”. Mr Ho agrees to do so. The Crown’s submission is that this exchange is likely to refer to obtaining a solvent for use in the manufacture of methamphetamine. In the context, this is a proper inference to draw.
[109] The inference is reinforced by further text messages, at 1:34 am and 2:02 am, when Mr Ho asks about quantity.
[110] At 2:52 am, Mr Kupkovic tells Ms Ka’ai that he is “outside”. At 10:26 am, Mr Kupkovic tells Mr Leighton Hoe that he is not at home and invites Mr Hoe to “come down to our mates”.
[111] I conclude that a manufacture of methamphetamine took place at Berwyn
Avenue on 6/7 January 2012. I accept the Crown’s submission that this inference is
supported by evidence of Mr Tuan Ho’s apparent involvement in supplying
methamphetamine on the evening of 6 January 2012 and on 7 January 2012.15
[112] I rule that on or about 6 January 2012, Mr Kupkovic and Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 13 (Kiev 0901a, 9-10 January 2012) – Kupkovic and Ho at Berwyn Avenue
[113] Mr Edgar submits that there is insufficient evidence to show that whatever took place at the address on this occasion ended with the production of methamphetamine. He submits that the most that the evidence could establish is that pseudoephedrine was extracted.
[114] Mr Hamlin accepts that Mr Ho was present initially but there is no other evidence of his involvement in what occurred and there is no evidence as to whether he remained at the address.
[115] Just before midnight on 9 January 2012, Mr Kupkovic advises Erica Dutton:
Im still lookin for some items so haven’t even started yet. Sorry but I will let
u know as soon as ok.
[116] However, at 1:32 am (it is now 10 January 2012), Mr Kupkovic is seeking permission from Ms Ka’ai to go to Berwyn Avenue. Permission is given and, at
2:09 am, Mr Kupkovic advises Mr Tuan Ho that he is “heading down in 15 min”. Mr Tuan Ho replies, “OK bro Il leav in 10 mins”. Mr Ho indicates that he will pick up bags of ice on the way. I heard evidence that ice can be used as part of the process of manufacturing methamphetamine. It is clear from the text messages that Mr Ho arrived at the shed at the Berwyn Avenue property at around 2:57 am. Mr Kupkovic arrived shortly after that. At 12:29 pm that day, Mr Kupkovic advises Ms Dutton:
I’m just finished up at work so I try to stop over soon ok.
[117] I conclude that Mr Kupkovic and Mr Tuan Ho manufactured methamphetamine at the Berwyn Avenue address on 10 January 2012.
15 Kiev 0601b.
MAN 14 (Kiev 1001a, 10-14 January 2012) – Kupkovic and Ho at Berwyn Avenue
[118] Mr Edgar submits there is insufficient evidence upon which to draw a proper inference that a manufacture of methamphetamine took place on this occasion.
[119] Mr Hamlin submits there is an inference that Mr Ho was present and was in the middle of doing something. That is insufficient to found an inference of culpability.
[120] The text messages indicate that over the course of 10 and 11 January 2012, Mr Ho is trying to obtain what I infer to be a precursor substance for use in the manufacture of methamphetamine. In a text message sent to an unknown person at
8:39 pm on 10 January 2012, Mr Ho refers to trying to find out about something “so we cn get bk 2 wrk”. By 12:22 pm on 12 January 2012, Mr Ho’s contact appears to have a supply of the substance which Mr Ho has been trying to obtain. At 8:21 pm, the unknown contact tells Mr Ho:
My bro h2o hear at my girlfriend place now.
[121] The reference to “h2O” is a reference to water. In turn, “water” is a code for hypo-phosphorous acid, a chemical used in the manufacture of methamphetamine. Mr Ho maintains contact with Mr Kupkovic and they arrange to meet. I infer from the messages which follow that Mr Ho obtains the hypo-phosphorous acid and he and Mr Kupkovic arrange to meet for the purpose of manufacturing methamphetamine. By around 1:20 am on 14 January 2012, Mr Kupkovic and Mr Ho are at the Berwyn Avenue address for that purpose. Later that day, at
2:46 pm, Mr Ho tells an unknown person, “Sorry im to buzy about da wrk. I saw ur txt but im in da meddle of doing sum thing, and then after i forgot to txt u bk. We jst start to do … wrk lastnite, maybe tonite or tomrw im support to txt u about catchup”. At 4:57 pm, Mr Kupkovic advises a Mr Bowker that he is “almost done here at work”.
[122] I infer that Mr Kupkovic and Mr Tuan Ho manufactured methamphetamine at the Berwyn Avenue address on 14 January 2012.
MAN 15 (Kiev 2001a and Kiev 2301a, 20-23 January 2012) – Kupkovic, Ho and
Hoe at Berwyn Avenue
[123] Mr Edgar accepts that there was a manufacture by Mr Kupkovic on this occasion. He challenges quantity.
[124] Mr Hamlin accepts that Mr Ho was present but submits that he was not taking an active part in the manufacture. He submits that Mr Ho appears to be acting as a lookout.
[125] Mr Speed concedes that Mr Hoe delivered caustic soda. He submits that this is insufficient to conclude that Mr Hoe is culpable as a party to the manufacture.
[126] The communications relating to this manufacture begin at 12:30 pm on
20 January 2012 when Mr Tuan Ho tells Mr Kupkovic that he will pick up “filet” and then come back to see Mr Kupkovic. The evidence is that “filet” is a code word for iodine. At 6:15 pm, Mr Kupkovic confirms to Mr Tuan Ho that they will “work tonight”.
[127] Mr Ho then arranges to meet “KT”, who I infer is a regular source of precursors. Later, Mr Kupkovic enquires whether Mr Ho has the “i fillet” and Mr Ho confirms that he does. This is another reference to iodine. The two men arrange to meet at Mr Leighton Hoe’s address.
[128] I infer from the intercepted communications that Mr Kupkovic and Mr Tuan Ho meet at the Berwyn Avenue address before 1:00 am on 22 January 2012. Mr Leighton Hoe joins them some time after 1:00 am. Mr Leighton Hoe stays for about an hour before leaving. There is some paranoia around the sighting of an unknown vehicle and Mr Leighton Hoe offers to “come back just keep eye out on rd”. Mr Kupkovic declines the offer.
[129] Mr Kupkovic continues to express concern about the unknown car and, at
2:39 am, Mr Ho suggests that they should pack up and move. Mr Kupkovic replies, “Just give it a few more minutes cause if it pigs then we will walk straight into them aye so we just listen a little”. In other words, he is concerned that if the Police are
outside on the road then leaving at that time would be a mistake. At 2:56 am, Mr Kupkovic suggests to Mr Ho “we just do our work fast”. He repeats this to Mr Ho at 2:57 am:
Just come and we start our job bro ok.
[130] Subsequent intercepted communications indicate that at 1:09 pm that day, Mr Kupkovic is still not home and it can be inferred that he is still at Berwyn Avenue manufacturing methamphetamine. At 1:21 pm, Mr Kupkovic tells Mr Tuan Ho that he wants to use Mr Ho’s car to “go down and get something at the farmers supply shop”. Mr Tuan Ho gives his permission. The evidence is that caustic soda can be purchased at shops which supply farmers. At 2:17 pm, Mr Kupkovic confirms that he is at “Pro Farm” (a farm supplies store) but it is not open. Mr Leighton Hoe offers to “go buning on way to u”. It can be inferred that he is offering to go Bunnings Warehouse to source caustic soda. Mr Kupkovic accepts the offer. Mr Kupkovic and Mr Hoe both arrive at the Berwyn Avenue address around
3:16 pm.
[131] At 11:50 pm that night, Mr Tuan Ho tells “KT” that he has just arrived home
and is very tired.
[132] The following day, 23 January 2012, at 5:32 pm, Mr Kupkovic tells
Mr Leighton Hoe, “I will finish up at work then come ova”.
[133] I infer from the foregoing that Mr Kupkovic, Mr Tuan Ho and Mr Leighton Hoe either manufactured, or were parties to the manufacture of, methamphetamine at the Berwyn Avenue address over the period 20-23 January 2012.
MAN 16 (Kiev 2701c, 27-29 January 2012) – Kupkovic, Ho, Hoe and Senior at
Wallace Road or Berwyn Avenue
[134] Mr Edgar’s submission is that the intercepted communications establish no more than Mr Kupkovic going to an address to clean up but being unable to gain access.
[135] Mr Hamlin concedes that Mr Ho is present and in the middle of something important. The issue is what can properly be inferred from that.
[136] Mr Speed points out that although Mr Hoe was asked to bring “water down”, there is no response from Mr Hoe. He submits that it is not possible to draw an inference that Mr Hoe delivered a precursor substance at any stage during this manufacture.
[137] The intercepted communications relevant to this alleged manufacture commence on 27 January 2012. The prisoners are joined by a new character, Mr Todd Senior. The text messages show that at around 9:20 pm, Mr Tuan Ho and Mr Leighton Hoe agree to meet at Mr Hoe’s address. Mr Senior is with Mr Leighton Hoe at that address (the Wallace Road address) where they lived together for a time. Mr Tuan Ho arrives at the address at about 9:57 am.
[138] Mr Tuan Ho asks Mr Leighton Hoe whether he is in the garage. At 10:00 pm, Mr Tuan Ho responds to an enquiry from “KT” by saying that he is in the middle of something important. At 11:05 pm, an unknown person contacts Mr Senior, who responds that “it’s a cruisey night but its gonna be a late one, dude. Don’t call i will contact you”. At 11:45 pm, Mr Kupkovic asks Mr Leighton Hoe to “bring that water down pls”. I infer that this is a request relating to hypo-phosphorous acid. At
1:22 am on 28 January 2012, Mr Senior tells another person that he is finishing up but still has about an hour left to go.
[139] I infer from the above that Mr Kupkovic, Mr Tuan Ho, Mr Leighton Hoe and Mr Senior either manufactured or were parties to the manufacture of methamphetamine in the period 27-28 January 2012. It is likely that the manufacture took place at the Wallace Road address but it is possible that the participants might have used the Berwyn Avenue address.
[140] I find the co-conspirators rule applies to make the contents of all of the text messages relevant to this incident admissible against all the prisoners.
MAN 17 (Kiev 2701c, 28-29 January 2012) – Kupkovic and Ho at Berwyn Avenue
MAN 18 (Kiev 2901a, 29 January 2012) – Kupkovic and Ho at Berwyn Avenue
[141] Mr Kupkovic denies that any manufacture took place. Mr Edgar submits that the text messages show that Mr Kupkovic and Mr Ho were unable to gain access to the Berwyn Avenue address.
[142] Mr Hamlin accepts that there is a reasonable inference that Mr Ho was present at an early stage, but only for four hours. There is an inference that he returned. Mr Hamlin’s submission, again, is that there is no other evidence of Mr Ho’s involvement with what was occurring.
[143] Originally, it was submitted by the Crown that MAN 17 and MAN 18 evidenced separate manufactures. Following the hearing of evidence before me, Mr Shaw for the Crown conceded that the evidence supports MAN 18 being a continuation of MAN 17. The Crown’s calculations for the quantum of methamphetamine produced by the prisoners which I have quoted above, take this into account.
[144] At 6:48 pm on 28 January 2012, Mr Tuan Ho asks Ms Ka’ai for permission to go to her Berwyn Avenue address. A minute later he tells another person that he cannot meet him because he is going to go to work and might be at work overnight. At 9:49 pm, Mr Tuan Ho tells Mr Kupkovic that he is at the Berwyn Avenue address. Mr Kupkovic tells Mr Ho that he will not be long. At 9:57 pm, Mr Kupkovic asks Ms Ka’ai “can I get in to clean up”. At 10:42 pm, Mr Kupkovic tells Mr Tuan Ho “C u in 10”.
[145] The next communication is at 2:39 am on 29 January 2012. Mr Tuan Ho tells his partner, Kelly Nguyen, that he is on his way home. At 2:44 am, Mr Tuan Ho tells Mr Kupkovic that he thinks that Nigel (a person who stays with Ms Ka’ai) must be at home because the sensor light did not come on when they left. He says he will see Mr Kupkovic tomorrow.
[146] Later that day, at 11:55 am, Mr Kupkovic informs Mr Tuan Ho, “I’m at work bro come down”. Mr Ho replies that he will leave in 20 minutes. At 4:09 pm, Mr Tuan Ho tells Kelly Nguyen that he is back at work. Earlier, Mr Kupkovic had told Mr Senior that he would text him when he is done and that it will probably take three to four hours. At 7:46 pm, Mr Kupkovic tells Mr Senior, “Bro just got phone back on. I will txt u when I’m all good. Don’t worry but sometime it takes a little longer”. At 7:47 pm, Mr Leighton Hoe asks Mr Kupkovic what he is up to and whether he needs a hand with anything. Mr Kupkovic’s response, at 7:49 pm, is, “Bro I’m at work. The two nutters arnt here. Come down if u want”. At 11:02 pm, Mr Tuan Ho tells Mr Kupkovic that he has arrived home but “Ill come bk if u want”.
[147] I infer from the foregoing that in the period 28-29 January 2012, Mr Kupkovic and Mr Tuan Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 19 (Kiev 3101b, 31 January to 3 February 2012) – Kupkovic and Ho at
Berwyn Avenue
[148] Mr Edgar submits that there is no inference available that a manufacture occurred during this incident.
[149] Mr Hamlin submits that there is an inference that Mr Ho was present but there is no other evidence of manufacturing and there is no evidence of any involvement by Mr Ho in any manufacturing.
[150] The intercepted communications relating to this alleged manufacture begin on 31 January 2012. I am satisfied that the text messages taken together show that Mr Tuan Ho is attempting to obtain precursor substances, particularly iodine and hypo-phosphorous acid. He also attempts to find another place at which he and Mr Kupkovic can manufacture methamphetamine. This is because they are having trouble contacting Ms Ka’ai. At 3:42 pm on 3 February 2012, he tells Mr Kupkovic “all done bro”. I take this to mean that he has what is necessary to manufacture methamphetamine again. This is confirmed by an exchange of text messages between Mr Tuan Ho and “KT” in which Mr Ho confirms he has what he needs. At around 4:00 pm, Mr Tuan Ho succeeds in making contact with Ms Ka’ai and
receives her permission to go to her Berwyn Avenue address that night. Mr Ho and Mr Kupkovic arrange to meet and I infer that they do meet at Berwyn Avenue at around 11:00 pm.
[151] In the context of the foregoing communications, I infer that methamphetamine was manufactured at the Berwyn Avenue address on or about
3 February 2012. I conclude that on or about 3 February 2012, Mr Kupkovic and
Mr Ho manufactured methamphetamine at the Berwyn Avenue address.
MAN 20 (Kiev 0402a, 4 February 2012) – Kupkovic and Ho at Berwyn Avenue
[152] Mr Kupkovic’s position is that there is insufficient evidence of a
manufacture. The reference to “Bob” and “meds” relates to the supply of Viagra.
[153] Mr Hamlin submits it is unclear whether Mr Ho was in fact present at Berwyn Avenue. He submits, further, that there is no other evidence/confirmation of manufacturing or of Mr Ho’s involvement in any manufacturing.
[154] The Crown’s evidence for this alleged manufacture commences with a request by Mr Kupkovic to Mr Tuan Ho made at 10:38 am on 4 February 2012, “Bro can you get cooking oil one litre”. Mr Tuan Ho replies in the affirmative. In the Crown’s submission, the reference to “cooking oil” is a reference to a chemical for use in the manufacture of methamphetamine.
[155] The final communication relied on by the Crown is from Mr Tuan Ho to Mr Kupkovic at 11:26 pm, “Bro Im so tired to go bk thea tonight but i really want to catch up tomrw for a very gud bro”. The Crown asks me to infer from this communication that Mr Tuan Ho has been assisting Mr Kupkovic who is still involved in the manufacturing process.
[156] In support of that theory, the Crown refers to an enquiry made of Mr Kupkovic at 9:34 pm by Daryl Bowker (a methamphetamine customer) in which he asks whether Mr Kupkovic has any idea when he will be finished. At 12:15 am on 5 February 2012, another methamphetamine customer, Erica Dutton, sends a
message to Mr Kupkovic, “daryl said u at work. he gone to bed tired boy. im up if ur out, n not too tired. no worries thou”.
[157] I disregard the exchanges between Bob and Mr Kupkovic upon which the Crown relied originally. Mr Shaw accepts that Bob supplied Mr Kupkovic with Viagra and there is no way of determining whether the exchanges relied upon by the Crown relate to Contac NT as opposed to Viagra.
[158] Nevertheless, the request for cooking oil, and the obvious activity going into the small hours of 5 February 2012, indicate the manufacture of methamphetamine. Accordingly, I find that Mr Kupkovic and Mr Tuan Ho manufactured methamphetamine on 4 February 2012.
MAN 21 (Kiev 0702a, 7 February 2012) – Kupkovic and Ho at Berwyn Avenue
[159] Mr Edgar submits that the evidence is insufficient to prove a manufacture.
[160] Mr Hamlin accepts there is evidence that Mr Ho and Mr Kupkovic met and that Mr Ho, in a conversation with his partner, talked about going back to work again. However, in Mr Hamlin’s submission, this is insufficient to found a proper inference of manufacturing, nor of Mr Ho’s involvement in any manufacturing.
[161] It is apparent from the first series of text messages relied upon by the Crown that Mr Tuan Ho is at the Berwyn Avenue address quite early in the morning of
7 February 2012. It can also be inferred that Mr Kupkovic had been at the address earlier because, at 8:52 am, he tells Mr Tuan Ho, “Im coming back soon bro”. Shortly afterwards, Mr Kupkovic is indeed back at the Berwyn Avenue address.
[162] The Crown then points to a text message sent by Mr Tuan Ho at 2:47 pm to his partner, Ms Nguyen. He refers to having to “come bk to wrk again”.
[163] The Crown reinforces its submission that methamphetamine is being manufactured by referring to a series of text messages between “KT” and Mr Tuan Ho. It appears that “KT” is looking to buy methamphetamine. At 3:01 pm, Mr Tuan Ho tells “KT”, “Bro when Im done Ill get bk 2 u ok. U dnt have 2 chase me like
dat”. “KT” then says that he did not mean to rush him. At 3:38 pm, “KT” says that he did not know that Mr Ho was still working. Mr Ho promises that once he has something then he will make sure that “KT” will get it as he always does. At
3:43 pm, Mr Ho tells “KT” that “Da bro” does not want him to keep his telephone on
“untill we alswt”. Mr Ho tells “KT” that he will text him “when I am swt bro”.
[164] From later text messages, it seems that Mr Tuan Ho and Mr Kupkovic have left the Berwyn Avenue property and need to return that night. Ms Ka’ai has visitors so Mr Tuan Ho tells Mr Kupkovic, at 5:09 pm, that they will have to be back around
8 or 9 o’clock. At 8:54 pm, Ms Ka’ai tells Mr Tuan Ho that her friends have gone. At that point, Mr Tuan Ho is not sure whether they are returning to Berwyn Avenue that night (“Im nt 2 sure bout dat, da bro nt text me so i guess its nt 2nite”).
[165] I conclude that on or about 7 February 2012 at Berwyn Avenue, Mr Kupkovic and Mr Tuan Ho manufactured methamphetamine.
MAN 22 (Kiev 0902d, 9-11 February 2012) – Kupkovic, Ho and Hoe at Berwyn
Avenue
[166] Mr Edgar submits that there is insufficient evidence that a manufacture took place. He points to the evidence that from time to time the Berwyn Avenue address was used as a “place to hang out”.
[167] Mr Hamlin submits that although there is evidence that Mr Ho was present at the address, there is insufficient evidence to draw inferences of culpability.
[168] Mr Speed submits that the arrangements for Mr Hoe to become involved are not clear. An inference cannot be drawn properly that Mr Hoe joined in a manufacturing in this period. Ingredients, apparently, were not available and any work which was commenced happened in the absence of Mr Hoe.
[169] At 10:42 pm on 9 February 2012, Mr Kupkovic asks Mr Tuan Ho, “Bro do u want to go pick up leighton and go to work”. Mr Tuan Ho replies in the affirmative. It appears from later text messages between Mr Leighton Hoe and Mr Tuan Ho that arrangements change so that Mr Kupkovic is to pick up Mr Leighton Hoe and
Mr Tuan Ho will join them at Berwyn Avenue after he finishes a couple of things. He says he will not be long. In the event, however, Mr Tuan Ho does not arrive until
12:52 am on 10 February 2012.
[170] Relevant messages do not recommence until some 16 hours later. At
5:22 pm, Mr Tuan Ho tells Mr Kupkovic that he is “coming nw ok”. Mr Kupkovic replies that he will be there in 15 minutes. At 5:52 pm, Mr Kupkovic asks Mr Tuan Ho where he is and Mr Ho replies “Im nearly tk”. The reference to “tk” is a common code for Ms Ka’ai.
[171] It seems as though Mr Tuan Ho and Mr Kupkovic are still looking for ingredients but the work continues, as is made explicit by Mr Tuan Ho at 8:02 pm when he tells Mr Leighton Hoe, “Bro!! Im at wrk with da bro …!”
[172] I infer from the above, in the context of the relationship between the parties, that Mr Kupkovic, Mr Tuan Ho and Mr Leighton Hoe manufactured methamphetamine at Berwyn Avenue on or about 9 February 2012.
[173] I accept that it cannot be inferred that Mr Leighton Hoe was at the address in the later hours of 10 February 2012. However, I am satisfied that he was at the address on the late evening of 9 February 2012 and was a party to the manufacture of methamphetamine. To be a party to the offending he does not have to be present throughout the manufacturing process, nor take a physical role in the manufacture. It is enough if he knowingly encouraged, on this occasion, the manufacture of
methamphetamine and that methamphetamine was actually manufactured.16
MAN 23 (Kiev 1202a, 12-14 February 2012) – Kupkovic, Ho and Hoe at Berwyn
Avenue
[174] Mr Edgar again submits that the evidence is insufficient to prove a manufacture.
16 Crimes Act 1961, s 66(1)(d). See R v Schriek [1997] 2 NZLR 139 (CA), R v Pene CA63/80,
1 July 1980.
[175] Mr Hamlin submits that Mr Ho was not present on this occasion because of domestic issues.
[176] Mr Speed does not address MAN 23 in his submissions. It would be consistent with his submissions on the other alleged manufactures that his attack would go to insufficiency of evidence.
[177] Originally, the Crown relied upon a series of texts between Mr Kupkovic and “Bob” in which Mr Kupkovic was seeking “meds”. As before, because of the concession by the Crown that Bob was a source of Viagra for Mr Kupkovic, I disregard those text messages.
[178] At 5:14 pm, Mr Tuan Ho asks an unknown party, “Cn u get da H2o bro?” I
accept that this is a reference to hypo-phosphorous acid.
[179] The next day, at 12:36 pm, Mr Kupkovic tells Mr Leighton Hoe, “just tidying up around home a little then off to arrange some consumables for work then over to shore to see my old mate”. In context, I accept that Mr Kupkovic is advising Mr Leighton Hoe that he is going to obtain materials necessary for the manufacture of methamphetamine. Mr Leighton Hoe offers to help.
[180] By 4:14 pm, Mr Tuan Ho has rendezvoused with Mr Leighton Hoe and he tells Mr Kupkovic this. At 6:02 pm, Mr Tuan Ho asks Ms Ka’ai, “is it ok we come aroud later on?”
[181] From later texts, it is apparent that Mr Leighton Hoe is at the Berwyn Avenue address, and at 11:07 pm Mr Kupkovic says that he will come down soon. Mr Leighton Hoe tells Mr Kupkovic that he will be okay if Mr Kupkovic wants to rest. At 11:14 pm, Mr Tuan Ho asks Mr Kupkovic whether he is at work. He says that if Mr Kupkovic is not at work then he will go there because Mr Leighton Hoe is there by himself. Mr Kupkovic replies that he is going soon and so Mr Tuan Ho does not go down himself. At 2:48 am, Mr Kupkovic tells Mr Leighton Hoe that he is outside.
[182] From the above, I conclude that on or about 13 February 2012 Mr Kupkovic, Mr Tuan Ho and Mr Leighton Hoe manufactured or were party to the manufacture of methamphetamine at the Berwyn Avenue address.
MAN 24 (Kiev 1502a, 15-17 February 2012) – Kupkovic, Ho, Hoe and Senior at
Berwyn Avenue
[183] Mr Edgar submits that there is insufficient evidence of a manufacture at
Berwyn Avenue during this period.
[184] Mr Hamlin submits that the evidence of manufacture is equivocal and permits only a weak inference that Mr Ho is present.
[185] Mr Speed accepts that Mr Hoe went to the Berwyn Avenue address. He does not concede that Mr Hoe took an active role in manufacturing methamphetamine. The submission is that Mr Hoe had a personal interest in the methamphetamine product.
[186] The Crown alleges that the three prisoners and Mr Senior were involved in manufacturing methamphetamine at Berwyn Avenue in the period 15-17 February
2012. I accept that a reasonable inference drawn from the messages exhibited for 15 and 16 February 2012 is that Mr Kupkovic, Mr Tuan Ho and Mr Senior have been trying to source hypo-phosphorous acid.
[187] At 11:51 pm on 16 February 2012, Mr Kupkovic asks Mr Leighton Hoe if he wants to come down to work. Mr Hoe replies affirmatively. A short time later, Mr Tuan Ho and Mr Kupkovic make arrangements with Ms Ka’ai to use the Berwyn Avenue address. These communications occur shortly after midnight. Accordingly, it can be inferred that the three men are at the Berwyn Avenue address in the very early morning of 17 February 2012.
[188] I infer that Mr Kupkovic, Mr Tuan Ho and Mr Leighton Hoe manufactured methamphetamine at the Berwyn Avenue address on or about 17 February 2012.
[189] For the sake of completeness, I repeat the point that to be a party to the manufacture of methamphetamine does not require active assistance. All that is required is intentional encouragement plus the actual production of methamphetamine.
[190] I find that the co-conspirators rule applies to the text messages, including those of Mr Senior.
MAN 25 (Kiev 1702b, 17-23 February 2012) – Kupkovic, Ho, Hoe and Senior at
Berwyn Avenue
[191] All counsel accept the Crown position that, due to an explosion, it cannot be inferred that the process of manufacturing methamphetamine was concluded.
[192] It is apparent that there was an attempt to manufacture methamphetamine at Berwyn Avenue on or about 23 February 2012. This involved all three prisoners and Mr Senior. Something went wrong with the manufacturing process and on
23 February 2012 there was an explosion. I agree that it is not possible to conclude that there was a completed manufacture of methamphetamine on that occasion. I will not classify it as a separate incident of manufacturing for the purposes of this charge.
MAN 26 (Kiev 2302d, 23-25 February 2012) – Kupkovic, Ho and Hoe at Wallace
Road
[193] Mr Edgar submits that the evidence is insufficient to found a conclusion that methamphetamine was manufactured. In particular, the presence of a helicopter gave rise to paranoia that would have precluded manufacture.
[194] Mr Hamlin accepts there is evidence that Mr Kupkovic and Mr Ho met. However, Mr Kupkovic’s later text messages leave open the inference that he is working by himself. Accordingly, there is insufficient evidence from which to infer that Mr Ho had an involvement with any manufacture that took place during this period.
[195] Mr Speed submits that there is insufficient evidence that any manufacturing took place at Mr Hoe’s address at Wallace Road at any time. He submits there is no evidence that Mr Hoe had a meth lab set up at his address. To the contrary, the evidence indicates that it was the Berwyn Avenue address where the chemicals and equipment were stored.
[196] Mr Speed’s further submission is that the evidence shows that Mr Senior and his partner were occupying the garage at the Wallace Road address at this time. It cannot be inferred that equipment and chemicals were moved from Berwyn Avenue to Wallace Road for the purpose of manufacturing methamphetamine and then returned to Berwyn Avenue.
[197] The Crown alleges that in the period 23-25 February 2012, the three prisoners manufactured methamphetamine at the Wallace Road address. Again, the Crown relied originally on messages between Mr Kupkovic and Bob. I will disregard those.
[198] It is apparent from the text messages on 24 February 2012 that the prisoners are worried about reports that a helicopter has been taking an interest in Ms Ka’ai’s property. Ms Ka’ai reports to Mr Tuan Ho that the helicopter has gone and, at
11:13 pm, Mr Tuan Ho tells Mr Kupkovic that and says, “Ur call bro”. At 2:48 am on 25 February 2012, Mr Kupkovic arrives at the address at which Mr Tuan Ho and Mr Leighton Hoe are present. At 9:06 am, Mr Kupkovic tells Mr Senior that he is in Mr Senior’s bedroom. Therefore, he is at the Wallace Road address.
[199] Later that day, at 3:15 pm, Mr Kupkovic tells Mr Senior that he is “working”
and asks him to “come to the bro’s”.
[200] I am not convinced that this activity took place at the Wallace Road address, although the indications are that it did. However, I do conclude that on or about
25 February 2012 the prisoners manufactured methamphetamine. The relationship between the prisoners, the activity in the small hours of the morning and the reference to working are the factors I rely on. Again, it is not necessary that I find that each of the prisoners were physically involved in the manufacture.
MAN 27 (Kiev 0503a, 5-7 March 2012) – Kupkovic, Ho and Hoe at Berwyn Avenue
[201] Mr Edgar for Mr Kupkovic accepts that a manufacture occurred during this period. He disputes quantity.
[202] Mr Hamlin accepts there is a reasonable inference to be drawn that Mr Ho was present at the address. However, his submission is that there is also a reasonable inference that Mr Ho spent many hours away from the address during this period and at one point was stuck in town.
[203] Mr Speed’s submission on behalf of Mr Hoe is that it is not clear from the intercepted communications whether manufacturing took place or what role, if any, Mr Hoe played. Mr Speed concedes that Mr Hoe appears to have delivered caustic soda to Mr Kupkovic.
[204] Between 3:00 am and 4:02 am on 5 March 2012, Mr Tuan Ho arranges with Ms Ka’ai for “we” to go to her Berwyn Avenue address. From 8:57 am, it seems that Dylan Hoe (son of Mr Leighton Hoe) is at Berwyn Avenue on the road keeping a lookout for Police.
[205] Other evidence establishes that at 10:00 am, Mr Leighton Hoe goes to Profarm (a farm supplies store in Papakura) where he purchases five kilograms of caustic soda.
[206] Subsequent text messages on 5 March 2012 establish that all three prisoners visit the Berwyn Avenue address at various points. For example, at 2:58 pm, Mr Tuan Ho tells Mr Leighton Hoe, “Bro i gna go town ce sum 1 and then Ill be at wrk ok bro”.
[207] At 10:32 pm, a person described as “C Mark” tells Mr Kupkovic that he needs “anotha whole steering rack same as otha day. Any gd?” Mr Kupkovic replies, at 8:33 am, the next morning, saying, “Im still up bro just about 1 hour left at work. Are you at home bro or in town”. I accept the Crown’s submission that C Mark is making a request for an ounce of methamphetamine and Mr Kupkovic’s response shows that he will finish making more methamphetamine in an hour. It
seems that it takes somewhat longer than that because, at 12:09 pm, Mr Senior asks Mr Kupkovic whether he will be finished before 2:00 pm. The inference is that there is a potential customer available. Mr Kupkovic’s response, at 1:59 pm, is that he will finish a little after 2:00 pm, and that it has “been a mission”.
[208] The “mission” seems to be ongoing. At 2:48 pm, Mr Kupkovic says to Mr Tuan Ho, “Bro what the fuck is going on. Where are u. Can u just grab the little distiller from home pls before we loose everything”. Further, at 2:52 pm, Mr Kupkovic asks C Mark, “Bro u know the round thing with three things on the top of it. Can you get one?” It seems that help is on the way because, at 2:56 pm, Mr Tuan Ho tells Mr Kupkovic, “We nearly thea bro. 1 mins”. At 2:57 pm, Mr Kupkovic tells Mr Tuan Ho, “Yea it’s all fucked now anyway”. The problem with the manufacture is further confirmed at 5:02 pm by Mr Tuan Ho who tells Mr Senior, “Nah i havnt get hme yet. Nothing done yet”.
[209] From messages sent between Mr Kupkovic and C Mark starting at 7:45 pm, it can be inferred that C Mark has obtained the item previously requested by Mr Kupkovic. It can be inferred that they met and C Mark gave it to Mr Kupkovic. Subsequently, Mr Senior and Mr Kupkovic meet and the Crown submits it can be inferred that Mr Kupkovic passed to Mr Senior the finished product, which Mr Senior then arranges to supply to others.
[210] At 2:15 am on 7 March 2012, Mr Senior asks Mr Kupkovic, “Hey dude can I see you again now, its all gone dude”. Mr Kupkovic at once agrees. At 3:45 am, Mr Tuan Ho tells Mr Kupkovic, “Bro we leave now. Dats it for today. Da bro hea got every with him ok bro”. I take this to mean that the manufacture has been completed and that Mr Tuan Ho and Mr Leighton Hoe have cleaned up and packed away the apparatus.
[211] At 3:54 am, Mr Senior says to Mr Kupkovic:
… Simple question. Can I get what I got earlier from you again before the sun comes up. I have the paper for the last one here. bro I/WE have been waitin for over an hnur and a half for you. Please bro its not fair.
Mr Kupkovic arrives at 4:46 am.
[212] I infer from all of the messages, and in the context of the proven relationship between the prisoners, that the prisoners manufactured methamphetamine at Berwyn Avenue on or about 6 March 2012.
MAN 28 (Kiev 0803a, 8-14 March 2012) – Kupkovic, Ho, Hoe and Senior at Berwyn
Avenue
[213] Mr Edgar, on behalf of Mr Kupkovic, concedes that methamphetamine was manufactured during this period. He disputes quantity.
[214] Mr Hamlin submits that a close analysis of the text messages does not show that Mr Ho was actually present (as opposed to expressing intentions). Further, a text from Mr Kupkovic to Mr Ho, telling Mr Ho that Mr Kupkovic was “waiting to dry”, indicates that Mr Ho was not present.
[215] Mr Speed submits that there is no evidence that Mr Hoe played any part in the alleged manufacturing.
[216] The text messages relied upon by the Crown show that on 8 March 2012, Mr Kupkovic, Mr Tuan Ho and Mr Senior are trying to obtain precursor substances. The drug slang for iodine is used (“eye”, “balls”, “ipod”).
[217] At 8:20 am on 10 March 2012, Mr Kupkovic tells a person named “Will” that he thinks “we can have this done by today bro”. This is reinforced when, at 9:46 am, Mr Senior asks Mr Kupkovic whether there is “any work available yet”. Mr Kupkovic replies at 9:48 am, “No not yet. Have to wait until i see my bro down the line. Couldnt c him yesterday should be today”.
[218] By the evening of 10 March 2012, it seems that work is about to start. It seems that Mr Leighton Hoe is still suffering the effects of the explosion which occurred earlier (he complains to Mr Tuan Ho, at 8:13 pm, that his ear is “real sore”). At 8:41 pm, Mr Tuan Ho tells Mr Kupkovic that Mr Leighton Hoe is “very sick”, “He not come to wrk tonight so im coming to wrk”. Mr Kupkovic then says to Mr Tuan Ho, “Can u grab everything from him pls”. Mr Tuan Ho tells Mr Kupkovic, “He give da bucked. He said all we nid in thea” (I infer “bucked”
means “bucket”). Between 9:27 pm and 9:38 pm, KT gives Mr Tuan Ho instructions on how to use iodine (“eye fellit”), “They have to do it in the reflux put the other two ingredients in first the add it bit by bit gradually and it will be mean ad”.
[219] It is not certain that manufacture of methamphetamine began on 10 March
2012. At 12:05 pm on 11 March 2012, Mr Tuan Ho is asking Mr Kupkovic whether everything is okay and enquiring as to what is going on. At 3:15 pm, Mr Leighton Hoe asks Mr Tuan Ho, “Did u and the bro go work last nite?”, to which Mr Tuan Ho replies, “We cnt find dat thng bro”. At 10:50 pm, Mr Tuan Ho tells Ms Ka’ai, “Hey sory about last9 we didnt come 2 hangout. Sn we got wat we nid then we wll come ova. If its cool”. However, it seems that there is still an unmet need for ingredients because, at 1:48 am on 12 March 2012, Mr Tuan Ho tells Mr Leighton Hoe, “We not wrkn tonite bro. Cnt get wat we nid”.
[220] I infer that subsequently the missing ingredient is located and Mr Tuan Ho, at
12:29 am on 14 March 2012, tells his partner, “Hes wrkn tonight”. At 5:03 pm, Mr Kupkovic tells Mr Tuan Ho, “Yep bro everything ok just waiting for the last load to dry”. I take this to be a reference to the final stage of the process of manufacturing methamphetamine where the methamphetamine in liquid form is evaporated to leave the crystal form.
[221] The Crown submits, and I accept:17
Kiev 1503a gives an indication that this manufacture was at least 56 grams (two ounces). The user of the number ending 5865 refers to a customer who wants “a cpl of wheels 4 her 10 speed” (wheel is a common reference to an ounce of methamphetamine and the reference to 10 could also be construed as the price of $10,000 per ounce). Kupkovic responds (at 20:02) by saying that he already “gave away the last to rims for those ten speed bikes”.
[222] I conclude that on or about 13 March 2012, Mr Kupkovic and Mr Tuan Ho manufactured methamphetamine at Berwyn Avenue. Although I accept that Mr Leighton Hoe was aware of what was happening and initially intended to be a part of the manufacture, there is insufficient evidence that in the end he actually was
a party to it.
17 Crown memorandum in relation to disputed facts hearing, dated 2 November 2013, at [4.104].
MAN 29 (Kiev 1703b, 17-25 March 2012) – Kupkovic and Senior at Roscommon
Road
[223] Mr Edgar submits that there is insufficient evidence to prove a manufacture took place during this period. He relies on text messages which indicate difficulties with sourcing iodine and a lack of money to purchase precursors.
[224] By 12 March 2012, it is clear that Ms Ka’ai does not want the prisoners to continue manufacturing methamphetamine at her address. At 3:16 am on that day, there is the text from Ms Ka’ai to Mr Tuan Ho making that clear:
Hi. No i want 2 talk b4 u have 2 wrk. Iv ben try.n 2 tell u guys, its ova &
u.s nedd 2 c me so we can settle outstand.n & that nige has gon abit strange.
[225] The Crown submits that subsequently Mr Kupkovic and Mr Senior use
Mr Kupkovic’s Roscommon Road address to manufacture methamphetamine.
[226] At 10:26 pm on 17 March 2012, it can be inferred that Mr Kupkovic has located a source of iodine. The price is $1,500 for half a kilogram.
[227] Mr Senior is also looking for iodine and I infer that he obtains a kilogram of the substance from the user of a number ending 4399. At 1:27 am on 19 March
2012, Mr Senior sends a text to Mr Kupkovic, “The half you were after I have 2 of dude in my hands now. Txt me bro ASAP”. Mr Kupkovic subsequently meets Mr Senior and the transfer of the iodine is confirmed by a text message sent by Mr Kupkovic to Mr Senior at 7:58 am, “Bro I know who u got the iPod from I know”. I infer that Mr Kupkovic goes on to source other substances needed for the manufacture, although this takes some time.
[228] On 23 March 2012, Mr Kupkovic, at 2:43 pm, tells his customer, Will, “… Bro things have just worked out so just send your bro with coin for finish if he leaves at about 9 tonight should be all good bro we don’t need to worry about the other any more thanks anyhow bro”. I infer from this that Mr Kupkovic is now in a position to predict the end of the latest manufacture of methamphetamine and to be in a position to supply methamphetamine “at about 9 tonight”. At 4:31 pm the next day, Mr Kupkovic gives a customer, Adam, his Roscommon Road address. It seems that
[278] At 8:27 pm, Mr Kupkovic complains to Mr Tuan Ho, “He not going to give us a break is he”. At 8:30 pm, Mr Kupkovic suggests to Mr Tuan Ho, “… bro what if u tell him to keep 1/3 of it and we can get it when we get the rest do u think he would nothing for him to risk then if he says no its probably something wrong with it what u think”. The two then meet.
[279] I infer from these text messages, in the context of the overall evidence, that Mr Kupkovic and Mr Tuan Ho are constrained not by the quantity of the precursor chemicals on offer but by the price. On this occasion, I cannot draw any inference as to what quantity of precursor substance, if any, was actually purchased. I have accepted that KT was eventually able to supply what was needed for MAN 5.
[280] The second series of text messages on which the Crown places emphasis is relevant to MAN 20.24 At 7:28 pm, Mr Tuan Ho is in contact with an unknown
person. Mr Ho tells the contact that he is not at home but, “U cn drop off and ill sort
23 I do not claim to be “more an antique Roman”. But I understand, and accept, the submission.
24 Kiev 0402c, at 187.
it out for u after bro”. The contact replies at 7:36 pm, “Im nt sure do u hav half payment nw?” Eventually the two agree to meet on 8 February 2012, with the contact insisting that “I want drop off and tak half ok?” Mr Tuan Ho agrees to this and then the exchange of texts finishes at 8:06 pm with the contact advising Mr Ho, “There is 2 kg not 1, thanks c u later”.
[281] I accept the Crown’s submission that these texts relate to the acquisition of a precursor substance. Given the quantity, it must be iodine. Two kilograms of iodine would be sufficient to manufacture one kilogram of methamphetamine.
[282] I am not sure, however, whether on this occasion Mr Tuan Ho eventually acquired two kilograms of iodine from the unknown contact. In a series of text messages between the two on 8 February 2012, the two arranged to meet. However, Mr Tuan Ho tells the unknown contact, “dnt take any thing with u”. He reinforces this with a further text one minute later, “Jst come and i want to talk to u 1st”.
[283] The third series of messages to which the Crown points to support its submission on quantity is in relation to MAN 26.25 At the beginning of the series of text messages, Mr Senior, I accept, is negotiating with an unknown contact to purchase iodine, “If da bro ring me I help his sore eyes”. The evidence is that iodine is commonly coded to some form of wording suggesting the letter “I”.
[284] At 11:59 am, the unknown contact advises Mr Senior, “I got 2 kg i wan 4 k”. In other words, the unknown contact has two kilograms of iodine which he will sell for $4,000. This is consistent with the known price of such a quantity. Two kilograms of iodine are sufficient to manufacture one kilogram of methamphetamine.
[285] At 12:03 pm, Mr Senior asks Mr Kupkovic, “Dude u still got problems with your I’s?” In other words, Mr Senior asks Mr Kupkovic whether he is still having difficulties locating iodine. There is no record of any reply.
[286] There is no evidence that Mr Kupkovic purchased two kilograms of iodine from the unknown contact through the agency of Mr Senior. I also note that at
25 Kiev 2302d, at 279.
12:59 pm, the unknown contact sent a message to Mr Senior which can be interpreted as an offer to sell one kilogram for $2,000.
[287] The fourth series of text messages relates to MAN 28.26 At 2:35 pm, a person with the attribution “Will” sends a text to Mr Kupkovic, “… il get someone to bring it up i got u 2 for 3k thats me putting nothing on it so u have to pay for his gas to if he brings up ok? sorry i couldnt txt sooner im stil at pd”.
[288] I accept that this is an offer to sell two kilograms of iodine for $3,000. I accept the Crown’s submission that although this is a cheap price for black market iodine, “Will” seems to be aware of that with his statement, “thats me putting nothing on it”.
[289] The fifth series of text messages relied upon by the Crown under this heading relates to MAN 29.27 Over the period 17 March 2012 and 18 March 2012, it is clear that Mr Kupkovic is negotiating with two unknown contacts to purchase iodine. With the person using the mobile phone with the suffix “927”, the code phrase is “irenes balls”. With the person using the mobile phone with the suffix “165”, the code is “ipod”.
[290] At 2:27 pm on 18 March 2012, Mr Kupkovic sends a text message to “927”, “Hey bro sorry just got txt now are u still able to see Irene today”. At 2:34 pm, “927” replies, “Yep … apparantly 50. cunts keep chngn price on me. 15 waz 4 hlf a block of cheese”.
[291] I accept that this translates as an offer to sell 500 grams of iodine for a price of $1,500. That quantity of iodine is sufficient to manufacture 250 grams of methamphetamine.
[292] At 2:40 pm, Mr Kupkovic tells “927”, “Ok bro seems like that all round bro
I’m still keen tho”.
26 Kiev 0803a, at 338.
27 Kiev 1703b, at 376.
[293] I note that Mr Kupkovic continues to negotiate with “165”. However, at
9:58 pm that day, Mr Kupkovic tells “927”, “Bro Im downstairs”.
[294] The sixth and final series of messages relied upon by the Crown is in relation to MAN 33.28 I accept the Crown’s submission that a series of text messages commencing at 2:39 pm between Mr Kupkovic and an unknown person whose mobile phone has the suffix “790” relates to a proposed swap of 250 millilitres of hypo-phosphorous acid for 250 grams of iodine. Mr Kupkovic, at 2:49 pm, tells “790”, “Bro Ive only got 350 and will need most of that” (350 millilitres of hypo-
phosphorous acid). That quantity of hypo-phosphorous acid, on the evidence I heard, is sufficient to manufacture approximately 210 grams of methamphetamine.
[295] I note that, in this same period, Mr Kupkovic is still trying to find iodine. Another factor I take into account is that whatever quantities of precursor substances are obtained, they seem to be entirely consumed in the related manufacture. That is evidenced by the almost constant search by the prisoners for new supplies of precursors. This, incidentally, bolsters the Crown’s case that Contac NT is not the limiting factor on the quantity of methamphetamine produced.
[296] Overall, I conclude that I can properly infer that Mr Kupkovic is in the market for significant quantities of precursor substances. It is not clear whether he always obtains the quantities discussed. I will need to consider the significance of this inference in the context of other proven facts relevant to the quantity of methamphetamine manufactured.
[297] The next indicator of quantity relied upon by the Crown is evidence of the amounts of methamphetamine supplied, or contemplated for supply. The Crown points to evidence from which it can be inferred that supply in the ounce or multiple ounce regions took place or was contemplated.
[298] The first instance of such evidence is in relation to MAN 26.29 There is a
series of text messages between “Will” and Mr Kupkovic. I accept the Crown’s
28 Kiev 1404a, at 426.
29 Kiev 2802e, at 294.
submission that looking at the occasions when Will, his associate Adam, and Mr Kupkovic interact, it can be safely concluded that Will and Adam buy methamphetamine from Mr Kupkovic and that they typically purchase methamphetamine in ounces or multiples thereof.
[299] Mr Kupkovic is making a delivery under the direction of Will. At 2:55 am on
1 March 2012, Mr Kupkovic sends a text message to Will, “Bro tell him to come out”. At 2:59 am, Mr Kupkovic reports to Will, “Bro I give him a whole one and we square up later ok”. At 3:08 am, Will asks Mr Kupkovic, “How much bro?” and Mr Kupkovic replies, “Bro I need to get 12”. Will replies, “That good Im happy with that thanx bro”.
[300] I am satisfied that this exchange refers to the purchase of an ounce of methamphetamine for $12,000. This transaction can be seen as evidence relating to the quantity of methamphetamine manufactured in MAN 26 (which occurred on or about 25 February 2012).
[301] The second series of text messages relates also to MAN 26.30 It is still
1 March 2012 and Mr Kupkovic is still supplying methamphetamine. At 11:21 am, he receives a text message from an unknown contact using a mobile phone number with the suffix “865”. The contact “865” asks Mr Kupkovic for “4 tyms 7 nw”. This can be interpreted as a request for 28 grams of methamphetamine. At 3:21 pm, Mr Kupkovic responds to “865” by saying that he is going to get a room in town and asking whether “865” will be able to come to see him. He is prepared to go to see “865” if it would be too much trouble for “865” to come to him. It is agreed that “865” will come to Mr Kupkovic and at 6:24 pm the two meet.
[302] The third block of text messages relied upon by the Crown relate to MAN
27.31 On 5 March 2012 at 10:32 pm, a person with the attribution “C Mark” sends a text to Mr Kupkovic, “I ring u bk in ten n. ed anotha whole steering rack same as otha day? any gd”. The reference to the steering rack is, I accept, a reference to an
ounce of methamphetamine. The reference to “same as otha day” indicates that this
30 Kiev 0103a, at 298.
31 Kiev 0503a, at 313 and 315.
is not an unusual or increased request. Mr Kupkovic does not reply (or we have no evidence of a reply), but C Mark is persistent. At 8:33 am the next day, there is a text message from Mr Kupkovic to C Mark, “Im still up bro just about 1 hour left at work are u at home bro or in town”. I take this to mean that Mr Kupkovic is not averse to supplying in this quantity but is currently involved in the manufacturing process. At 1:59 pm, Mr Kupkovic tells C Mark, “I will be about 4 oclock bro”, to which C Mark responds with words to the effect that he will wait for Mr Kupkovic and in the meantime he will organise the money.
[303] The fourth series of text messages to which the Crown refers relates to MAN
28.32 On 15 March 2012, the unknown contact using the mobile phone number with the suffix “865” asks Mr Kupkovic, “Hey brthr. hw u. aunty wnts a cpl of wheels for her 10 speed. cn we hlp?” Some hours later, Mr Kupkovic replies, “Sorry bro was fast asleep but I gave away the last to rims for those 10 speed bikes away last night”.
[304] I accept the Crown’s submission that the inquiry relates to two ounces of methamphetamine. Mr Kupkovic’s response indicates that he disposed of the last two ounces he had available the previous night. Since MAN 28 finished on or about
13 March 2012, this indicates (as I said previously) that at least 56 grams of methamphetamine were manufactured on that occasion.
[305] The fifth series of text messages relates to MAN 29.33 On 24 March 2012 at
2:42 pm, an unknown contact using a mobile phone number with the suffix “373” inquires of Mr Senior, “Algs mi bro hey whn wil he be dne wil he have a wheel”. In context, I infer that this is an inquiry as to whether an ounce of methamphetamine will be available once MAN 29 is complete.
[306] The sixth series of text messages also relates to MAN 29.34 On 30 March
2012 at 11:06 am, “Will” asks Mr Kupkovic, “How’s it going any chance Adam can catch up with u tonite or tomorrow?” Mr Kupkovic replies, “Probably tonight bro”.
That proves to be optimistic because the following night, at 6:51 pm, Mr Kupkovic
32 Kiev 1503a, at 373.
33 Kiev 1703b, at 385-386.
34 Kiev 3003a, at 402.
sends a text message to “Will”, “Bro u can send Adam up what’s he coming up with”. “Will” replies, “21 bro Adams gone to a family thing until the morning can I send him up first thing?” Mr Kupkovic agrees.
[307] I agree with the Crown that “21” relates to a sum of money. The Crown submits that, in this case, the sum of money is $21,000, which would be sufficient for the purchase of two ounces of methamphetamine. In other circumstances, “21” could be $2,100. However, in the context of the relationship between Will, Adam and Mr Kupkovic, I accept that this is not a small scale transaction. I accept it relates to the supply of two ounces of methamphetamine for $21,000.
[308] The final set of text messages relied upon by the Crown relates to MAN 34.35
At 6:25 pm on 23 April 2012, an unknown contact using the mobile phone number suffix “109” asks Mr Senior, “U b much Lnga g”. Mr Senior replies, “2 to 3 hours dude I will txt when on way home”. The response by “109” is, “Swt cn u do wheel 4
10”.
[309] I agree with the Crown that this is a request for one ounce of methamphetamine at a price of $10,000.
[310] A few minutes later, at 6:56 pm, “109” sends a text message to Mr Senior adding to the request, “Also cn u bng sum water with u”. At 7:00 pm, Mr Senior replies, “No to water cos got none and the other question will have to wait till were done before an ansa. And will she agree to 13”.
[311] I infer from this that the manufacture then under way might yield an ounce but Mr Senior wants $13,000 for it.
[312] Overall, I conclude that the text messages referred to under this heading compel me to an inference that it is not unusual for Mr Kupkovic to be
manufacturing methamphetamine in ounce or multiple ounce quantities.
35 Kiev 2004a, at 437.
Outcomes
[313] I have found that the prisoners manufactured methamphetamine on the following occasions:
(a) Mr Kupkovic:
MANs 1, 2, 3, 4, 5, 6, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17/18, 19, 20,
21, 22, 23, 24, 26, 27, 28, 29, 31, 32, 33, 34
A total of 30 incidents of manufacturing
(b) Mr Tuan Ho:
MANs 1, 2, 3, 5, 6, 9, 10, 11, 12, 13, 14, 15, 16, 17/18, 19, 20, 21, 22,
23, 24, 26, 27, 28
A total of 23 incidents of manufacturing
(c) Mr Leighton Hoe:
MANs 4, 8, 15, 16, 22, 23, 24, 26, 27
A total of nine incidents of manufacturing
Mr Kupkovic
[314] I am satisfied beyond reasonable doubt that Mr Kupkovic, as a general rule, manufactured methamphetamine using at least one set of Contac NT and usually more than one set:
(a) Two sets of Contac NT were found at his home when the Police interrupted MAN 35. Obviously, a further supply of Contac NT had been used in the interrupted process.
(b)He was in possession of about $27,000 in cash. This, on the evidence of Sergeant Perry, equates roughly to profit on the sale of five ounces (140 grams) of methamphetamine. In addition, he had to buy the precursor substances needed for MAN 35 (including Contac NT), plus the two sets of Contac NT found by the Police. The unused Contac NT alone would (according to Sergeant Perry) have cost Mr Kupkovic around $20,000. Altogether, at least the profit from the sale of another five ounces (140 grams). The evidence is that at MAN 5 (27-
30 November 2011), Mr Kupkovic was having trouble raising the cash to purchase precursor chemicals. Logically, between
30 November 2011 and 26 April 2012, Mr Kupkovic manufactured and sold enough methamphetamine to cover all overheads and living expenses plus retain a surplus equivalent to the profit on the sale of at least 10 ounces (280 grams) of methamphetamine.
(c) He sold in quantities of ounces or multiple ounces. There are not many intercepted communications evidencing Mr Kupkovic’s supply pattern – just as there are no communications evidencing his purchase of Contac NT. As Sergeant Perry explains, for most of the Police operation only text messages were intercepted. Telephone conversations were not intercepted, and surveillance was not carried out. In sum, I am satisfied that the communications relating to supply give a reasonable snapshot of Mr Kupkovic’s activities.
(d) He purchased large quantities of precursor chemicals when he could.
He appears to have used all of what he obtained each time he manufactured. I conclude this because of the frequency with which he sought more iodine and hypo-phosphorous acid. I infer that Contac NT was readily available to him and was not a limit to the quantity of methamphetamine he could manufacture.
[315] I accept there is a reasonable possibility that not all of the proven manufactures were on this scale. Difficulties can arise in the manufacturing process and there is an indication of this on one occasion (not counting the occasion of the
explosion). Limited availability of other precursor chemicals could limit the ability to extract pseudoephedrine from Contac NT and convert it to methamphetamine. But, this reasonable possibility would apply to only a very small minority of the manufactures. I will allow for this by assigning an average yield of 67.5 grams of methamphetamine per manufacture. That is the product from processing one-and-a- half sets of Contac NT at a 50 percent conversion factor.
[316] I judge this to be very conservative. The evidence of the ESR scientist, Ms Mayo, is that conversion factors higher than 50 percent can be achieved. The quantities of iodine being purchased (one kilogram at a time) indicate a greater scale of manufacture than I have allowed. So, too, do sales in multiple ounces. However, while I am sure that on average more than one set of Contac NT was used, I am not sure that the average was two sets or more. I am satisfied that taking an average of one-and-a-half sets of Contac NT per manufacture is safe – and favourable to the prisoners.
[317] Finally, having reached this view on the relevant evidence, I have cross- checked my conclusion against Mr Tuan Ho’s interview with the Police. My conclusion is consistent with what Mr Ho told the Police (putting to one side his protestation that he manufactured with Mr Kupkovic on only five occasions). I do not, of course, use Mr Tuan Ho’s interview as evidence against the other prisoners. But I am satisfied that he did not overstate the activities in which he admitted involvement. If my analysis of the evidence admissible against the other two prisoners had reached a conclusion significantly more adverse than I could reach against Mr Tuan Ho then I would have gone back and reconsidered my logic. I do not need to do that.
Mr Tuan Ho
[318] Looking now at Mr Tuan Ho, I accept – considering what he told the Police against the other evidence – that he was candid when he discussed the quantities of Contac NT being used and the derived yield. At the time of his interview with the Police, he was clearly well versed in the method of manufacturing methamphetamine and the yields which might be expected.
[319] Mr Tuan Ho told the Police that he and Mr Kupkovic manufactured methamphetamine on five occasions over a period of three months. For the first two occasions single sets of Contact NT were used and on the last three occasions two sets of Contac NT were used. The yield was usually 70 grams of methamphetamine from 90 grams of extracted pseudoephedrine. I note this is consistent with the evidence of Ms Mayo of the ESR. Mr Tuan Ho said on one occasion only 46 grams of methamphetamine was obtained and that was the worst conversion they achieved.
[320] Mr Tuan Ho said that after he split from Mr Kupkovic, he manufactured on one occasion on his own account. He did not use Contac NT because, apparently, that came from Mr Kupkovic’s source. He used different pills and extracted 70 grams of pseudoephedrine from which he obtained 35 grams of methamphetamine. He said that that ratio “of course is not good”.
[321] Mr Tuan Ho confirmed that he bought precursor chemicals for Mr Kupkovic. He would buy one kilogram of iodine at a time for $2,500. A litre of hypo- phosphorous acid would cost from $2,000 to $2,500. These figures are consistent with the values ascribed by Sergeant Perry.
[322] Mr Tuan Ho had been unemployed for two years and he was manufacturing methamphetamine to make a living. He said he manufactured with Mr Kupkovic perhaps twice a week, but sometimes with intervals because of a lack of materials. He remembered one period of two weeks when they did no work.
[323] Mr Tuan Ho used methamphetamine himself. Mr Kupkovic supplied him with methamphetamine for his personal use, but that was not part of his remuneration. For his remuneration he would receive seven grams of methamphetamine, or perhaps 14 grams of methamphetamine, to sell on a commission basis. He would return part of the sale proceeds to Mr Kupkovic and be permitted to keep perhaps $4,000 for himself.
[324] As is apparent from my finding that Mr Tuan Ho was involved with 23 incidents of manufacturing, I do not accept his statement to the Police that he manufactured with Mr Kupkovic on only five occasions.
[325] On the basis of Mr Ho’s admissions to the Police, I would be justified in assigning to him a higher average manufacture than the other prisoners. That is because I could conclude that after the first two incidents of manufacture he used two sets of Contac NT. However, I am going to treat him the same as the other prisoners. It is clear that Mr Kupkovic was the leader of this manufacturing and supply operation and that Mr Tuan Ho was his assistant. It would be unfair to treat Mr Tuan Ho more severely than his principal because of the particular application of this rule of evidence. I have to apply the law, but not to the point of unfairness.
Mr Leighton Hoe
[326] Turning now to Mr Leighton Hoe, it follows from my finding that he was involved with nine incidents of manufacturing that I have discounted his explanation to the Police that he was involved to a limited extent, and on occasions only, by supplying caustic soda.
[327] Mr Speed submitted that a reasonable possibility on the evidence of Ms Ka’ai was that Mr Leighton Hoe could have been present at the Berwyn Avenue property for legitimate work and/or socialising. I did not find Ms Ka’ai to be a reliable witness. Clearly, she was in an awkward position giving evidence on behalf of the Crown. I find that she knew very well the purpose for which the prisoners were using her premises, and paying her $400 a week for that use. The prisoners were her friends, particularly Mr Leighton Hoe with whom she had had years of association. In my view, Ms Ka’ai sought to distance herself from their activities while trying not to be too explicit as to what those activities were.
[328] Ms Ka’ai did, however, give me some insight into the interaction she had with the prisoners. I accept her evidence that perhaps a fortnight after she gave permission for her premises to be used, the prisoners began to share methamphetamine with her on a social basis. Ms Ka’ai said that this occurred
perhaps two or three times a week.36 Ms Ka’ai’s evidence-in-chief was that
sometimes the socialising involved all three prisoners and herself, but there were
36 Notes of evidence, at 40-41.
times when she shared methamphetamine with one or others of the prisoners. In relation to Mr Leighton Hoe, her evidence was:37
Q. And were there times when you shared meth with Leighton when he was by himself?
A. Um, I have to think, yeah, it could – yeah, at an occasion or two, yeah.
[329] Shortly afterwards, Ms Ka’ai accepted that whoever she was sharing the methamphetamine with was the person who brought the methamphetamine to be used.
[330] In cross-examination, Mr Speed tried to redress the situation for his client:
Q. You told His Honour that you smoked methamphetamine with
Leighton?
A. Yes.
Q. And was this at your house? A. Yes.
Q. In the cottage? Do you remember, was this in this time period when the shed was being rented out to Andrei?
A. Yes.
Q. And you had your own source or supply of methamphetamine, didn’t
you?
A. No.
Q. You didn’t have any of your own?
A. No. I had tried prior to securing, but it’s not a sell all my grandmother’s gold teeth to access things.
Q. Now my instructions are that Leighton never supplied you with methamphetamine, he did not supply you with methamphetamine.
A. Oh okay.
Q. Do you agree with that or do you disagree with that?
A. Um, I can, I can say that’s a fair enough comment to say because I would have occasionally have the remnants of, um, of a bag and could scrape that out.
37 At 41-42.
Q. And share that?
A. Yeah so, I beg your pardon for misleading you in that way and I’m
sorry for Leighton, for saying that.
Q. Yes, so you agree that he never provided you with methamphetamine?
A. No, it was the plastic bags that I had that are remnants.
[331] I do not accept Ms Ka’ai’s evidence on this point. She was self-evidently trying to protect Mr Leighton Hoe once Mr Speed made it clear to her that she had said something adverse to his interests.
[332] Accordingly, and having regard to his interview with the Police, I find that Mr Leighton Hoe was involved culpably with the nine incidents of manufacture. For some, he was a party through the supply of caustic soda. For others, he was present and at least assisted or encouraged the manufacture. I accept that Mr Leighton Hoe’s motivation for being involved was primarily to obtain methamphetamine for his personal use. Given his personal financial position, and drawing inferences from his interview with the Police, I find that he also obtained some small amounts of money for his involvement. Overall, his culpability is much less than that of Mr Kupkovic and Mr Tuan Ho.
Conclusion
[333] Against the involvement which I have set out above, I will sentence the prisoners on the representative count of manufacturing methamphetamine on the following basis:
(a) Mr Kupkovic: 2025 grams of methamphetamine
(b) Mr Tuan Ho: 1552 grams of methamphetamine
(c) Mr Leighton Hoe: 607 grams of methamphetamine
Timetable
[334] Sentencing is scheduled for 19 August 2014:
(a) The Crown is to file and serve:
(i) Its sentencing submissions, and
(ii) The summary of facts on the other counts in the indictment;
by 25 July 2014.
(b) Defence counsel are to file and serve sentencing submissions by
12 August 2014.
Brewer J
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