R v P HC Auckland CRI 2008-092-17198

[2009] NZHC 2273

This case has been anonymized

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI 2008-092-17198

THE QUEEN

v

P

Hearing:         15 December 2009

Counsel:         BR Northwood for the Crown

MN Pecotic for the Prisoner

Judgment:      21 December 2009 at 11.00 a.m.

JUDGMENT OF RODNEY HANSEN J

This judgment was delivered by me on 21 December 2009 at 11.00 am, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

R V P HC AK CRI 2008-092-17198  21 December 2009

Introduction

[1]      Mr P   has pleaded guilty to a representative count of supplying methamphetamine between 12 February and 5 May 2008.   On his appearance for sentence on 15 December, it became clear that there was a major difference between the Crown and the defence as to the aggregate quantity of methamphetamine involved.   I indicated, pursuant to s 24 of the Sentencing Act 2002, that I would attach significant weight to the total amount of methamphetamine involved in the offending.  The hearing then proceeded for the purpose of determining that issue.

The evidence

[2]      The Crown case against Mr P   relies entirely on text messages and voice mail communications intercepted in the course of a three-month covert surveillance operation of Tribesmen and Killer Beez gang members in South Auckland.  Over the period the police intercepted a total of 11,440 communications involving Mr P  .  Of these, 1,235 were identified as being drug-related. In the summary of facts 94 individual transactions were identified, most involving multiple communications between Mr P   and others.

[3]      It is common ground that the communications relied on establish that on a number  of  occasions  small  quantities  of methamphetamine  were supplied.    The defence concedes that in approximately 30 of the transactions Mr P   supplied quantities ranging from 0.1 gram to 2 grams, amounting in total to approximately 24 grams.

[4]      The Crown accepts that in some cases the communications do not establish conclusively that supply took place or the quantity involved.   But Mr Northwood submits that the intercepted communications show that Mr P   supplied methamphetamine  on  approximately  70  occasions.     On  the  Crown  case,  the quantities involved were usually small, most often less than a gram and rarely more than two grams.

[5]      On analysis, it emerged that the discrepancy between the Crown and defence as to the total quantities involved arose from their differing interpretations of the communications relied on by the Crown in relation to three transactions.  These were identified  as  Transaction  2,  Transaction  11  and  Transaction  91.    The  Crown’s position is that the evidence shows that on the three occasions there was respectively

7 grams, 10 grams and 28 grams of methamphetamine either supplied or available for supply.  The total quantity alleged to be involved in these transactions, 45 grams, accounts for most of the difference between the Crown and the defence as to the total quantity of methamphetamine supplied.   Accordingly, the disputed facts hearing focused on these three transactions.

Transaction 2

[6]      The evidence relied on by the Crown for Transaction 2 comprises 7 text messages  which  passed  between  Mr  P    and  the  alleged  purchaser between 8.38 p.m. and 9.37 p.m. on 14 February 2008.  It is convenient to set out the exchange in full.   The prefixes “I” and “O” signify whether the text message was incoming or outgoing.

I         Ez...any quart? O Hour johnstne

I         Yep ok

I         swt

I         Ez...algd 2 come nw? O   Stl w8n

I         ok den

[7]      The  Crown’s  interpretation  of  these  messages  is  that,  in  the  initial  text message, Mr P   was asked if he had a quarter of an ounce or 7 grams of methamphetamine.     (The  Crown’s  position  was  that  the  abbreviation  “quart” signified  a  quarter  of  an  ounce.)    Mr  P  ’  reply  was  that  he  would complete the deal in an hour’s time in Johnstones Road, Otara, a locality which featured frequently in communications.   Mr Northwood acknowledged that the penultimate message indicates that Mr P   was still waiting for his own supply but his position is that, by the time communications concluded, it could be

inferred that Mr P   had 7 grams of methamphetamine available and was in a position to supply the customer.

[8]      There are several difficulties with the Crown’s position.  The first is that it is by no means clear that a “quart” refers to a quarter of an ounce.  Ms Pecotic points out that the expression is frequently used in communications to refer to one quarter of a gram.   It appears to be a measure that could be applied to both grams and ounces.  Secondly, the evidence is inconclusive as to whether Mr P   ever received a supply of methamphetamine for on-sale.  Mr Northwood was obliged to concede that the communications do not establish that Mr P   either received the methamphetamine he was apparently waiting for or supplied anything to the prospective purchaser.

[9]     I am  satisfied  the  evidence  does  not  establish  supply of  any methamphetamine.

Transaction 11

[10]   The evidence relied on for Transaction 11 is an intercepted voice communication between Mr P   and a co-offender, Michael Shortland, who was also associated with the Killer Beez.   The transcript of the conversation follows:

TIME 13:26:37	PARTIES EDWARDS M SHORTLAND	TEXT Co where you at? Where   just    going    up    on   the
bombays.
EDWARDS	Oh yeah yeah, you wanna stop and grab us a big bottle of water?
M SHORTLAND	Yeah yeah
EDWARDS	I got all you pies here...got about 10 pies.
M SHORTLAND	Yeah yeah yeah sweet.
EDWARDS	Where about 2 minutes away.

M SHORTLAND

Yeah

We’ll be at um not the BP the one

on the other side.

EDWARDS

Oh the Caltex

M SHORTLAND

We’ll be there.

EDWARDS

Sweet then.

M SHORTLAND

..............

EDWARDS

A O

13:27:04

Call ends.

[11]     The Crown’s theory is that “pies” is code for methamphetamine and Mr Paki- Edwards   was   advising   his   associate   that   he   had   at   least   10   grams   of methamphetamine available for him.   Mr Northwood submits that it is possible to infer from the communication that Mr P   would have supplied that quantity of methamphetamine.

[12]     Mr P   swore an affidavit in which he explained the circumstances in which the conversation took place.  He said he was with a group of people who were going to a motorbike track in Tuakau.  They stopped at a service station to buy pies and water.  They were in two cars.  Mr Shortland was in the other car with his brothers.  He said he told Mr Shortland to buy the water as the occupants of his car had already bought the pies.

[13]     Ms Pecotic points out (and it is accepted by Mr Northwood) that there is no evidence that “pies” is used as code for methamphetamine.  It has not been used in any of the other intercepted communications.  She submits that it is speculative to take from the conversation that Mr P   was in possession of methamphetamine.

[14]     I agree  with  the  defence.    Mr  P  ’  explanation  seems  at  least plausible.  The Crown is drawing a long bow.  The conversation does not provide a sound basis for the inference I am invited to draw.

Transaction 91

[15]     The evidence relied on by the Crown comprises the following exchange of text messages which took place between 8.22 and 8.35 p.m. on 30 April 2008:

IMabro i kan get sum rocky engines 4 14 15k mabro 4bg engine u wana go halfs mabro it gangsta buda

O        Ao my bro they gana b thr 4 ing

I         Yea my bro an its fukn mean shet mabro

OKeen my bro jst dat i got a big engne if they stl thr n da nxt 1my bro keen

I         Swt mabro u got new engine mabro

O        Yea my bro

[16]     This exchange is interpreted by the Crown as establishing that Mr Paki- Edwards was in possession of an ounce (or 28 grams) of methamphetamine which was available for supply.  The Crown says that it was the source of three small sales which took place later that day and in the course of the following day.

[17]     The Crown theory is that the initial incoming text message advises Mr Paki- Edwards that his associate can source 28 grams of methamphetamine, of which he could purchase half for $14,000 - $15,000. The term “rocky” is said to refer to crystalline or “ice” methamphetamine.   The term “engine” is said to be used as a code for methamphetamine.  The price mentioned is consistent with the prevailing price for methamphetamine in that quantity.

[18]     The reply from Mr P   is to the effect “Are they going to be there long?” That is interpreted to mean, “How much time do we have?”

[19]     The response needs no elaboration.  The next outgoing message is said by the Crown to convey that Mr P   is interested but already has a large quantity of methamphetamine (“a big engine”).  He would be keen if what was being offered

was still there the next day.  The concluding exchange of text messages confirms that

Mr P   is indeed in possession of a “new engine”.

[20]     Ms Pecotic submits that “engine” is code for a gram of methamphetamine, not for a larger quantity.   She submits further that, even if a larger quantity were involved, all that can be inferred is that Mr P   was in possession of that quantity.  It would be wrong to infer that he supplied that amount, particularly as the three remaining transactions which emerged from the intercepted communications involved, respectively, the supply of 0.2 gram, 1 gram and 0.1 gram.

[21]     I consider the terms of the messages can fairly be understood to refer to an offer to supply Mr P   with half an ounce or 14 grams of methamphetamine.    While it is the case that “engine” is used in other communications to refer to a gram of methamphetamine, the reference in these communications  is  to  “a  big  engine”.    And,  as  Mr  Northwood  points  out,  the reference to the sum of $14,000 - $15,000 suggests a transaction on the larger scale contended for by the Crown.

[22]     I have some difficulty, however, with the next step in the Crown’s reasoning which requires me to accept that, because Mr P   declined to participate in the transaction, he must have been in possession of an equivalent quantity himself. That  simply  does  not  follow  as  a  matter  of  logic.    I  also  accept  the  defence submission that possession of a substantial quantity of methamphetamine cannot automatically be translated into the supply of an equivalent quantity, particularly as, on the Crown’s own evidence, the remaining transactions involved in total a little over 1.0 gram.

[23]     I conclude that the evidence relied on by the Crown does not prove supply of methamphetamine   additional   to   the   amounts   sold   in   the   three   subsequent transactions.

Conclusion

[24]     In sentencing Mr P  , no account should be taken of the quantity of methamphetamine (if any) referred to in the intercepted communications relied on for Transactions 2, 11 and 91.  That indicates that the total quantity which the Crown can prove to have been involved was in the range of 20 - 30 grams.

[25]     It should be borne in mind, however, that the total quantity is only one measure of culpability, albeit an important one.  The summary of facts makes it clear that over the period in question Mr P   regularly supplied small quantities of methamphetamine to a select group of customers.  The total quantities which the Crown is able to prove to have been sold do not fully reflect the scale and nature of his drug dealing activity.

[26]     Sentence is adjourned to 9.00 a.m. on 4 February 2010.