R v McMillan
[2021] NZHC 1993
•4 August 2021
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2019-085-001094
[2021] NZHC 1993
THE QUEEN v
KENNY LESLIE McMILLAN
Hearing: 15 July 2021 Appearances:
G J Burston for the Crown M Pecotic for Mr McMillan
Judgment:
4 August 2021
JUDGMENT OF GWYN J
(Disputed Facts)
Introduction
[1] Mr McMillan has been convicted of nine charges in total: four charges of possession of methamphetamine for supply;1 four charges of supplying methamphetamine;2 and one charge of failing to carry out obligations in relation to a computer system search.3
[2] Following his convictions, Mr McMillan indicated that he disputes the summary of facts in relation to the eight methamphetamine charges, specifically in relation to the quantity of methamphetamine involved. In a minute dated 6 May 2021
1 Misuse of Drugs Act 1975, s 6(1)(f) and (2)(a); maximum penalty life imprisonment.
2 Section 6(1)(c) and (2)(a); maximum penalty life imprisonment.
3 Search and Surveillance Act 2012, s 178; maximum penalty three months’ imprisonment.
R v McMILLAN [2021] NZHC 1993 [4 August 2021]
I confirmed that is a fact to which the Court will attach significant weight at sentencing,4 and a disputed facts hearing was therefore scheduled.
Background
[3] All nine charges result from two police investigations into an operation that supplied methamphetamine in the Auckland and Wellington regions – Operation Superdry in relation to Wellington-based offending, and Operation Maddale in relation to Auckland-based offending. Mr McMillan was the main individual targeted in the Wellington-based offending. Mr James was the principal Auckland-based individual targeted by Operation Maddale and was Mr McMillan’s primary supplier.
[4] The eight methamphetamine charges can be broken down into three categories: the Auckland transportation phase, the carpark building phase, and the termination phase.
[5] Two of the charges arise from the Auckland transportation phase – offending that occurred between December 2018 and March 2019, when Mr McMillan arranged for the transportation of bulk quantities of methamphetamine to Wellington from Mr James in Auckland:
(a)charge 7, between 1 December 2018–9 March 2019, supply; and
(b)charge 6, between 10–15 March 2019, possession for supply.
[6] Five of the charges arise from the carpark building phase – offending that occurred between March and May 2019, when Mr McMillan exchanged methamphetamine for cash, primarily with his co-defendant Mr Taui, in carpark buildings in Wellington (some of this was sourced from Mr James, and some was sourced from Mr O):
(a)charge 5 (representative), between 10 March–2 May 2019, supply;
4 Sentencing Act 2002, s 24(2)(a).
(b)charge 1, on 8 April 2019, possession for supply;
(c)charge 2, on 12 April 2019, supply;
(d)charge 3, on 14 April, supply; and
(e)charge 4, on 26 April, possession for supply.
[7] The remaining charge arises from the termination phase – when executing search warrants on 2 May 2019, Police found Mr McMillan in possession of methamphetamine:
(a)charge 8, on 2 May 2019, possession for supply.
[8] Mr McMillan pleaded guilty to charges 1, 2, 3, 4, 5, 8, and 9 on 9 February 2021. He was convicted on charges 6 and 7 on 15 March 2021, following a jury trial. The parties agreed that the disputed facts hearing could proceed on the basis of the evidence adduced at Mr McMillan’s trial, as well as evidence given by Mr McMillan at the disputed facts hearing.
Law
[9]Section 24 of the Sentencing Act 2002 provides:
24 Proof of facts
(1)In determining a sentence or other disposition of the case, a court—
(a)may accept as proved any fact that was disclosed by evidence at the trial and any facts agreed on by the prosecutor and the offender; and
(b)must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2)If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a)the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b)if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c)the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
…
[10]I adopt the approach to a disputed facts hearing set out by Stevens J in
R v Haarhaus,5 and adopted by Grice J in R v Namana:6
[15] A common sense view is called for in deciding what inferences or conclusions should be drawn from the evidence. The question is whether there is a factual basis and a logical process which leads to a conclusion from other proven facts, thus enabling inferences to be drawn. In this connection, it is appropriate to consider the surrounding evidence that I find to be reliable and ask whether it is safe, logical and rational to draw the conclusion contended for. Finally, it must be logical and rational and must never be speculation or guesswork. I bear in mind that, in relation to any aspect of proof of the alleged aggravating features, where the evidence would support two conclusions of similar weight, to then choose between them would be to guess, which is not permissible …
[16] This is a case where the Crown relied on circumstantial evidence. The Crown pointed to the surrounding context and background emerging from all of the intercepted material and the surveillance … I also remind myself of the standard direction on circumstantial evidence and note that it is the cumulative effect of the evidence that is important. The test must therefore be whether there is such a combination of facts and circumstances that enable me to be satisfied beyond reasonable doubt that the Crown has proved the challenged aggravating facts.
[17] This is a case where the prisoner put the Crown to proof in respect of the aggravated facts relied upon. In his submissions for the prisoner, [counsel] put forward a number of propositions which he contended showed reasonable doubt regarding the aggravating facts in question. From time to time both in cross-examination and in submissions, counsel for the prisoner put forward possible alternative inferences, for example, contending that the prisoner was dealing in grams rather than ounces and contending that the tablets were BZP rather than MDMA.
5 R v Haarhaus HC Auckland CRI-2007-004-18646, 4 June 2009.
6 R v Namana [2019] NZHC 1952 at [9].
[18] In this context I remind myself of the approach to be taken by the Judge as described by the Court of Appeal in R v Seekamut CA82/03 10 July 2003. There, Anderson J in hearing an appeal in relation to the argument that the verdicts were unreasonable stated at [21]:
Counsel has raised many possible alternative inferences consistent with innocence, and has argued that those inferences must be preferred. If on an objective basis that has regard to all the circumstances, a rational alternative to guilt is not excluded, there must for that reason be a reasonable doubt. But the mere fact that some of the circumstances might arguably permit an inference inconsistent with guilt is not enough. The jury's function is to assess the whole of the evidence and in so doing may conclude that a suggested alternative is not reasonably tenable. In light of this reality Counsel's submissions are unpersuasive. The circumstantial evidence in this case was entirely adequate to support a verdict of guilty.
Submissions
[11] Ms Pecotic, counsel for Mr McMillan, submitted that the Crown cannot prove Mr McMillan was in possession of and/or supplied more than a total of 7.238-7.438 kilograms of methamphetamine across all eight charges.
[12] Mr Burston, counsel for the Crown, submitted the evidence establishes Mr McMillan was in possession of and/or supplied a total of at least 17 kilograms of methamphetamine.
Analysis
[13] By the time of the hearing before me, the parties had agreed to the quantity of methamphetamine involved in all charges except for charge 7 (part of the Auckland transportation phase). For completeness, I set out the details of each charge, starting with the Auckland transportation phase, then the carpark building phase, then the termination phase.
The Auckland transportation phase: charge 6
[14] In March 2019, Mr McMillan’s co-defendants, Mr Philip, Ms Hayman and Mr Minns transported a shipment of methamphetamine from Mr James in Auckland to Mr McMillan in Wellington. The methamphetamine was concealed within a hidden compartment in a purpose-modified Nissan Tiida registration LGU234 (the Tiida), and Mr Minns then started to drive it back to Wellington. However, he was stopped by
Police along the way, and the car was impounded in Taupō for an unrelated driving offence. The methamphetamine was subsequently discovered by Police on 15 March 2019. The Crown alleged Mr McMillan was in possession of two kilograms on this occasion.
[15] Although Mr McMillan initially disputed the amount relating to charge 6, at the disputed facts hearing Ms Pecotic accepted the amount (two kilograms) contained in the Crown charge notice. This is the amount on the basis of which Mr McMillan will be sentenced in relation to charge 6.
The Auckland transportation phase: charge 7
[16] Charge 7 is a representative charge that, between 1 December 2018 and 9 March 2019, at Wellington, Mr McMillan, together with Mr James, Mr Philip and Ms Hayman, supplied methamphetamine to other persons – after sourcing it from Mr James on various occasions in the same manner as the methamphetamine involved in charge 6. None of the methamphetamine involved in charge 7 was intercepted or seized by Police, so the details of this charge (both the number of trips, and the quantity involved in each trip) rely on inferences drawn from the Police’s wider evidence (primarily Auror records,7 CCTV footage, and telecommunications data), as well as the known details of Mr McMillan’s operation as a result of the seizure of the Tiida covered by charge 6.
[17] The Crown alleges that Mr McMillan purchased two kilograms of methamphetamine from Mr James on seven occasions during this time, resulting in a total of 14 kilograms under charge 7:
(a)Mr Philip and Ms Hayman pleaded guilty to charges arising from four of those occasions: 10-12 December 2018; 19 December 2018; 15-16 January 2019; and 22-25 January 2019.
(b)There were, according to the Crown, three further trips by Mr McMillan’s co-defendants in purpose-modified drug carrying
7 Auror is a commercial CCTV system used for security purposes, for example at petrol stations.
vehicles on 5, 12 and 21 February 2019, which are evidenced by Auror records, CCTV, and telecommunications data.
[18] Mr McMillan provided an affidavit for the purpose of the disputed facts hearing and appeared at the hearing for cross-examination. In his evidence Mr McMillan accepted the trips on 10-12 December 2018, 19 December 2018, and 24 January 2019. He said only one kilogram of methamphetamine was transported on each of these occasions, resulting in a total of three kilograms under charge 7. Mr McMillan denied involvement in the trips on 15-16 January 2019, 5 February 2019, 12 February 2019, and 21 February 2019.
The Crown case
[19] As the Crown noted, to have found Mr McMillan guilty on this charge, the jury must have been convinced that he sold methamphetamine sourced from Mr James on at least one occasion during this period.
[20] At Mr Taui’s disputed facts hearing, I found that Mr McMillan sold methamphetamine to Mr Taui on 2 March and 7 March 2019.8 The Crown case was that Mr McMillan’s methamphetamine sales were on a much larger scale; Mr McMillan was purchasing kilograms of methamphetamine from Mr James and selling ounces of methamphetamine to Mr Taui and other Wellington-based customers. The Crown said that the scale of those purchases from Mr James is the best evidence about the quantity of methamphetamine that Mr McMillan would have on-sold during the period covered by charge 7.
[21] The CCTV evidence demonstrates that the trips on 5 and 21 February 2019 involved Mr Philip and Ms Hayman, which is consistent with the pattern of them collecting methamphetamine from Mr James on Mr McMillan’s behalf. While only the 5 February 2019 trip was captured on the Bentick Street CCTV, the Crown notes that collections of methamphetamine from that address were not always visible. The Tiida was never observed on the Bentick Street covert CCTV. There was also evidence
8 R v Taui [2021] NZHC 594 at [37].
at trial that Mr James was involved with multiple locations at Bentick Street, most of which were not captured by the covert CCTV.
[22] In relation to the 21 February 2019 trip, the Auror and CCTV footage captures Mr Philip, Ms Hayman and Mr Minns, travelling in convoy, including in the Tiida. Mr Philip’s phone was polling near Mr James’ address at Bentick Street on 21 February 2019. On 22 February 2019, the Tiida is sighted back at the Z station at Levin. The Crown submitted that Mr Minns had driven to Auckland in the Tiida, in convoy with Mr Philip and Ms Hayman, for a pick-up of methamphetamine, which was stored in the secret compartment in the Tiida for the trip back to Wellington.
[23] The Crown submitted the February 2019 trips fit into the pattern of one collection of methamphetamine every two weeks in the 14 weeks between 1 December 2018 and 10 March 2019. The Crown submitted that the three trips to collect methamphetamine in February 2019 account for the payments made by Mr McMillan to Mr James, via Mr James’ associates, on 27 February and 7 March 2019. The Crown said that Mr McMillan made payments to Mr James on at least the following occasions:
(a)19 December 2018;
(b)24 January 2019;
(c)5 February 2019;
(d)27 February 2019;
(e)7 March 2019;
(f)11 March 2019; and
(g)19 March 2019.
[24] Two cars, with purpose-built concealed compartments, were used for the alleged trips in January and February 2019: the Tiida, and a Mitsubishi Lancer
registration LRK979 (the Lancer). The Crown submitted that there was no reason for the Tiida or Lancer to make the 22-25 January 2019 and three February 2019 trips, except to purchase methamphetamine on Mr McMillan’s behalf.
[25] As to quantity, the Crown said that while there was no direct evidence as to the quantity of methamphetamine purchased on each of the seven occasions, the best evidence of quantity is the amount located and seized in the Tiida on 15 March 2019 (covered by charge 6). The Crown submitted that in the context of the sophisticated and lucrative operations being run by Mr James and Mr McMillan, the reasonable conclusion is that two kilograms was transported on each trip. The trips involved the same modus operandi, use of the same purpose-built hidden compartment mechanism, the same high level of risk, and the same people as the Tiida trip in March 2019.
[26] On that basis, the Crown submitted that Mr McMillan supplied in the order of 14 kilograms of methamphetamine to his customers in Wellington during the period covered by charge 7, all being methamphetamine he had purchased from Mr James.
Mr McMillan’s evidence
[27] As noted above, Mr McMillan denied any involvement in the trips on 15-16 January 2019 and the three February 2019 trips. He said that he was overseas for much of January 2019 and had no communications with his associates during that period. His evidence was also that he did not trust them to continue his operation in his absence. He said that on the three occasions where he accepted he purchased methamphetamine from Mr James, it was only one kilogram each time.
[28] Mr McMillan’s evidence was that the one kilogram he purchased on 25 January 2019 took him a month to sell. He said the two kilograms found in the impounded Tiida in March was a deal offered to him by Mr James – two kilograms for $300,000 if Mr McMillan put down a deposit. $160,000 of that purchase price was transported to Mr James in the Tiida on the 10-15 March trip (before the Tiida was impounded). There was a photo of this cash, together with a Mongrel Mob patch, found on Mr Minns’ phone. The final payment was made to an associate of Mr James on 19 March 2019.
[29] Mr McMillan’s evidence was also that February was a “slow” month as he had lost a lot of business during his absence overseas in January. Under cross-examination, he declined to detail the customers who he alleged he lost during that period.
[30] Accordingly, Mr McMillan said that the amount for which he should be sentenced in relation to charge 7 is three kilograms.
Witness X (Operation Maddale)
[31] At the disputed facts hearing Ms Pecotic sought leave to submit a statement provided by a prosecution witness (Witness X) in the Operation Maddale proceeding, in relation to the Auckland-based methamphetamine offending. Those matters have yet to come to trial. Witness X is said to be the right-hand person of Mr James, working with him at Bentinck Street where Mr James’ methamphetamine operation was based.
[32] Ms Pecotic wishes to rely on that statement for the purposes of this disputed facts hearing, pursuant to s 24(2) of the Sentencing Act 2002, which provides:
(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
…
(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
…
(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
…
[33] At the disputed facts hearing, I made a non-publication order in respect of the name, details and potential evidence to be given by Witness X.
[34] Ms Pecotic relied on Witness X’s statement as a “cross check” of Mr McMillan’s evidence in relation to charge 7. In particular, Ms Pecotic said it supports Mr McMillan’s account that on 16 January 2019 the trip by Mr Philip and
Ms Hayman to Bentinck Street was unexpected – it was a trip to deliver cash only, and no drugs were put in their car for transport back to Wellington. Similarly, Witness X says that a 30 January 2019 visit to Auckland by Mr Philip related to Mr Philip’s purchase of a car from Mr James, not to a drug transaction.
[35] The Crown said the statement is prima facie inadmissible, because it is hearsay and it would have an unfairly prejudicial effect on the proceeding. Nevertheless, the Crown consented to the statement being received by the Court in order to expedite matters.
[36] Having now received the statement from Witness X, I agree that it is hearsay evidence.9 I have considered it for the purpose of this disputed facts hearing, but I agree with the Crown that the statement is of very limited use and value for the purpose for which it is has been advanced. I reach that conclusion for a number of reasons:
(a)This Court has not heard from Witness X, and the Crown has not had the opportunity to cross-examine Witness X.
(b)Witness X’s statement was prepared for the purposes of the Operation Maddale proceeding. Necessarily, its focus is on the matters the subject of that proceeding, rather than matters in issue in relation to Mr McMillan.
(c)Witness X does not focus on the quantity of methamphetamine sold by Mr James to Mr McMillan.
(d)While Witness X may be able to give credible evidence of the general nature and modus operandi of Mr James’ methamphetamine supply business, as the Crown pointed out, the absence of evidence from him on any specific matter relating to Mr McMillan is simply that. It is not evidence that certain events did not occur.
9 Evidence Act 2006, s 4 definition of “hearsay”.
Discussion
[37] While there is no direct evidence of Mr McMillan’s involvement in the 15-16 January 2019 trip and the three February 2019 trips, I am satisfied that there is a sufficient factual basis from which I can draw the inference that Mr McMillan was responsible for each of those trips and received a shipment of methamphetamine from each trip – meaning he received seven shipments of methamphetamine from Mr James during the period covered by charge 7.
[38] At the outset, I make a general observation about the reliability of Mr McMillan’s evidence – Mr McMillan was not a credible witness. At the disputed facts hearing, Mr McMillan was cross examined on the content of two affidavits he had sworn on oath in relation to his appeal against the refusal of the District Court to grant him electronically monitored bail. Those affidavits were sworn on 8 October 2019 and 10 December 2019.
[39] In the October 2019 affidavit, Mr McMillan said, in reference to the trip by the Tiida from Auckland to Wellington when it was impounded and two kilograms of methamphetamine found in a purpose-built compartment, that:
I had nothing to do whatsoever with this incident. I am unaware of any evidence that links me to the driver of the Nissan Tiida within which the methamphetamine was located, or to the vehicle.
[40]Under cross-examination, Mr McMillan admitted this was a lie.
[41] In the same affidavit, Mr McMillan also said: “In relation with Mr Andre James my only contact with Mr James was that I purchased cars off Mr James via my BNZ bank account.” Mr McMillan acknowledged under cross-examination that this, too, was a lie.
[42] In the 10 December 2019 affidavit, Mr McMillan said, in relation to the Tiida, “I have nothing to do with this vehicle whatsoever.” Under cross-examination, Mr McMillan acknowledged that also was a lie.
[43] In addition to this false evidence in his earlier affidavits, I found much of the evidence Mr McMillan gave at the disputed facts hearing to be untrue. Mr McMillan gave evidence about the general pattern of his purchases from Mr James. While he acknowledged that he on-sold a kilogram of methamphetamine between the 10-12 December and 19 December 2018 trips, his evidence was that this was because it was the “festive season”, and he said he was not able to on-sell the same quantities in January and February 2019. He also said he lost business while overseas in January. I do not accept that assertion. The frequency of purchases alleged by the Crown was consistent across the period December 2018 to March 2019. I find it is not plausible that the kilogram of methamphetamine Mr McMillan admitted he purchased on 25 January 2019 would have lasted him until the end of March 2019 (when Mr McMillan admitted to next purchasing methamphetamine, from Mr O, as discussed below in relation to charge 5). That is particularly implausible, when considering the two kilogram shipment seized from the Tiida on 15 March 2019 never arrived, but Mr McMillan still had the find the funds to pay for it.
[44] Mr McMillan also said that when the Lancer and the Tiida were not being used to courier methamphetamine, his associates (in particular, Mr Paulo and Mr Stone) had the use of the vehicles and must have used them for their own operations of which he had no knowledge and control. However, the evidence at Mr McMillan’s trial established that at all relevant times the Lancer and the Tiida were registered in the names of close associates of Mr McMillan and were always within his control. I conclude that Mr McMillan retained close control of the Tiida and the Lancer at all relevant times, notwithstanding that his associates had some personal use of those vehicles.
[45] I turn now to the specific evidence in relation to each disputed trip. The 15-16 January 2019 trip involved the same three colleagues of Mr McMillan’s who were involved in the March trip, when the Tiida was impounded and the methamphetamine seized: Mr Philip, Ms Hayman and Mr Minns. It also involved the Lancer – the evidence at Mr McMillan’s trial was that both the Lancer and the Tiida were provided by Mr James to Mr McMillan in April 2018, specifically for the purpose of transporting methamphetamine in purpose-built secret compartments. Mr McMillan acknowledged that the cars were given to him by Mr James to secure him as a client.
[46] I also found Mr McMillan gave unreliable evidence about the 15-16 January 2019 trip at the hearing before me. First, Mr McMillan’s evidence was that he was overseas at the time of this trip and had no contact with New Zealand while he was away. However, under cross-examination he acknowledged that he had signed a document for the purposes of registration of a new company (Mantis Associates Limited) while overseas on 19 January 2019, which he then provided electronically to his agent in New Zealand. This is consistent with the evidence at trial of Mr McMillan’s frequent and consistent use of devices which enabled him to communicate by encrypted means.
[47] Second, Mr McMillan’s evidence in relation to the 15-16 January 2019 trip was that he would not have trusted Mr Philip or any of his other associates with either the methamphetamine, or the cash to pay for it, while he was overseas. However, under cross-examination, he admitted that he had recommended Mr Philip to Mr James to carry out a job relating to the methamphetamine business. Regardless, his affidavit evidence was that he generally received the methamphetamine from Mr James on credit, sometimes paying a deposit and then making part payments; I conclude that it was likely that the 15-16 January 2019 shipment proceeded on that basis, so it is unclear how much Mr McMillan would have needed to trust Mr Philip at that time in any event.
[48] I do not accept Mr McMillan’s evidence that he was not involved in the 15-16 January 2019 trip. I find there is sufficient credible evidence from which I can infer that Mr McMillan was directly involved in the 15-16 January 2019 trip.
[49] The 5 February 2019 trip again involved Mr Philip, Ms Hayman and Mr Minns. It also involved the Lancer. That is clear from the evidence at Mr McMillan’s trial. It is also clear that Mr McMillan was in touch with Ms Hayman in the relevant time period. Mr Philip was captured on CCTV footage at Bentinck Street on 5 February 2019, taking in a red bag and returning empty handed. Mr McMillan suggested that this was likely to have been Mr Philip delivering a part payment for the 22-25 January 2019 shipment, or he might have been paying for a car he had purchased from Mr James.
[50] I conclude that there was no reason for Mr Minns to be driving the Lancer with the secret compartment, in convoy with Mr Philip and Ms Hayman, simply for the purpose of Mr Philip either paying for his car or making a part payment on an earlier consignment of methamphetamine received by Mr McMillan. I find there is sufficient credible evidence from which I can infer Mr McMillan was involved in the 5 February 2019 trip.
[51] The 12 and 21 February 2019 trips involved the Tiida. There is CCTV evidence to establish that Mr Philp and Ms Hayman were involved in at least the 21 February 2019 trip. I acknowledge neither trip was captured on the CCTV at Bentinck Street; however, I do not place much weight on that, given the fact the Tiida was never observed on the Bentinck Street CCTV, even on the occasions when the other evidence clearly establishes it was being used for the purpose of transporting methamphetamine. The evidence established that Mr James had multiple locations in Bentinck Street, most of which were not captured by the covert CCTV. I infer that some drug transactions took place off camera. I again find there is sufficient credible evidence from which I can infer Mr McMillan was involved in the 12 and 21 February 2019 trips.
[52] Each trip in January and February 2019 involved either the Lancer or the Tiida, with their purpose-built hidden compartments which could accommodate a package containing two kilograms of methamphetamine. I accept the Crown submission that it would make no sense for Mr McMillan to send the purpose-modified cars to Auckland and not have them collect methamphetamine. As well as involving the same vehicles, each trip involved the same modus operandi, the same level of risk, and the same colleagues of Mr McMillan. There was a complete absence of evidence at Mr McMillan’s trial to indicate that any of those colleagues were separately involved in purchasing methamphetamine from Mr James (or indeed from any other supplier), and none of them were found on arrest to have any cash or assets that would be consistent with such involvement.
[53] For the reasons detailed above, I do not accept that Mr McMillan stopped purchasing methamphetamine in January or February 2019. The cumulative evidence provides a sound basis on which I can reach the conclusion that Mr McMillan was the
directing force behind the trips to Auckland on each of 10-12 December 2018, 19 December 2018, 15-16 January 2019, 22-25 January 2019, 5 February 2019,
12 February 2019 and 21 February 2019.
[54] As to quantity, I accept the Crown submission that the two kilogram amount located and seized on 15 March 2019 is strong evidence as to the amount involved in each trip. Witness X’s evidence about the trips to Wellington and Christchurch (where Mr James also operated, using similar purpose-modified vehicles) is also consistent with each trip involving two kilograms. Witness X related a comment made by Mr James that the trips needed to be worth the time and money. Witness X estimates each Christchurch trip involved two kilograms of methamphetamine.
[55] However, I also note the evidence from Detective Dunhill at Mr McMillan’s trial. In relation to the 22-25 January 2019 trip (which Mr McMillan admitted he was involved in), Detective Dunhill explained that CCTV footage showed Mr James providing a package of what he believed to be methamphetamine to Mr Philip. Detective Dunhill’s opinion was that that package contained “no less than one kilogram”.
[56] While I accept it is a possible inference from the evidence that each trip involved two kilograms, it also appears possible each trip involved between 1-2 kilograms. I note Mr Philip and Ms Hayman pleaded guilty to their involvement in the relevant trips, on the basis of one kilogram per trip. I find there is little evidence other than the amount seized in the Tiida and Witness X’s evidence (which I have already held I cannot place much weight on, given it was not tested before me) that each trip involved two kilograms of methamphetamine, and the Crown have not proved beyond a reasonable doubt that each trip involved two kilograms. I find that the evidence at Mr McMillan’s trial provides a factual basis from which I can logically draw the conclusion that at least one kilogram of methamphetamine was involved in each of the seven trips covered by charge 7.
[57] Accordingly, I find that seven kilograms is the amount on which Mr McMillan will be sentenced in relation to charge 7.
The carpark building phase: charge 5
[58] Mr McMillan had also initially disputed the amount under charge 5, a representative charge of supply during the period 10 March 2019 to 2 May 2019. During this period, the Crown alleged Mr McMillan was supplying methamphetamine sourced from different suppliers – up until 25 March it was sourced from Mr James, and from that point on it was sourced from Mr O.
[59] In its written submissions dated 28 April 2021, the Crown originally alleged Mr McMillan supplied 868 grams of methamphetamine during the period covered by charge 5. Unlike charge 7 (which was based on the amount Mr McMillan sourced), this figure was calculated based on known supplies Mr McMillan had made during that period – 10 transactions of three ounces each (840 grams in total) to Mr Taui, and one transaction of one ounce (28 grams in total) to Mr A. However, the Crown acknowledged there was some overlap in the methamphetamine Mr McMillan supplied during the period covered by charge 5, and the methamphetamine Mr McMillan sourced from Mr James during the period covered by charge 7. In order to avoid double-counting, the Crown removed the transactions with Mr Taui between 10-25 March which were sourced from Mr James, and alleged a total of 448 grams (sourced from Mr O) was involved in charge 5.
[60] However, at the hearing before me, Mr McMillan confirmed in his evidence that he sourced a total of 800 grams of methamphetamine from Mr O in late March/early April.
[61] At the disputed facts hearing, and in further written submissions filed after the hearing, Ms Pecotic confirmed Mr McMillan accepted the amount of 868 grams in relation to charge. 5 This appears to be the figure originally advanced by the Crown based on the known transactions, rather than the quantity Mr McMillan confirmed he sourced from Mr O.
[62] Consistent with Mr McMillan’s evidence at the hearing before me, I find he supplied 800 grams of methamphetamine (sourced from Mr O) in relation to charge 5.
The carpark building phase: charges 1-4
[63] Although Mr McMillan initially disputed the amounts relating to charges 1-4 inclusive, at the disputed facts hearing Ms Pecotic accepted the amounts contained in the Crown charge notice on the basis of which Mr McMillan had pleaded guilty. Those amounts are:
(a)charge 1 - 160 grams;
(b)charge 2 - 280 grams;
(c)charge 3 - 84 grams; and
(d)charge 4 - 28 grams.
[64] Those are the amounts on the basis of which Mr McMillan will be sentenced in relation to charges 1-4 inclusive.
[65] For completeness, I note these amounts are consistent with the amounts I found Mr Taui was responsible for supplying, following his disputed facts hearing.10
The termination phase: charge 8
[66] Charge 8 relates to a package of methamphetamine located when Mr McMillan was arrested on 2 May 2019, as part of the termination phase of Operation Superdry. This package was tested by Police and was found to contain methamphetamine. At the disputed facts hearing Mr Burston advised the Crown would amend this charge from 29 grams to 18 grams. Ms Pecotic accepted this amount, and I accordingly find that the weight on which Mr McMillan will be sentenced in respect of charge 8 is 18 grams.
10 R v Taui, above n 8, at [37].
Result
[67] I find beyond reasonable doubt that Mr McMillan was in possession for supply, or supplied, the following amounts of methamphetamine:
(a)charge 1: 160 grams;
(b)charge 2: 280 grams;
(c)charge 3: 84 grams;
(d)charge 4: 28 grams;
(e)charge 5: 800 grams
(f)charge 6: two kilograms;
(g)charge 7: seven kilograms;
(h)charge 8: 18 grams.
totalling 10.37 kilograms.
[68] Mr McMillan is to appear for sentencing at 10:00 am on 13 August 2021. At sentencing, the Crown will be entitled to rely on the aggravating facts found as proved beyond reasonable doubt in this judgment.
Gwyn J
Solicitors:
Crown Solicitor, Wellington
Verus Chambers, Auckland
3