R v Rhodes

[2009] NZCA 486

IN THE COURT OF APPEAL OF NEW ZEALAND

CA91/2009
CA98/2009
CA141/2009
CA159/2009
CA162/2009
CA198/2009
[2009] NZCA 486

THE QUEEN

v

ALBERT JOHN RHODES (CA91/2009)
GLENN THOMAS DOUGLAS GOLLOP (CA98/2009 AND CA162/2009)
PAUL EDWARD ROBINSON (CA141/2009)
STEPHEN PAUL KISSLING (CA159/2009)
RICHARD HEBOLD RHODES (CA198/2009)

Hearing:30 September 2009 and 1 October 2009

Court:Robertson, Chisholm and Priestley JJ

Counsel:C J Tennet for Albert Rhodes

P J Kaye for Glenn Gollop
S Tait and J M Hudson for Paul Robinson
S P Ellis for Stephen Kissling
R A Walden and B S Cooper for Richard Rhodes
B D Tantrum for Crown

Judgment:19 October 2009 at 11.30 am

JUDGMENT OF THE COURT

The appeals against conviction and sentence are all dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Robertson J)

Table of Contents

Para No

INTRODUCTION  [1]

THE APPEAL ISSUES  [5]
BACKGROUND  [9]
THE JURY ISSUE  [22]
ALBERT RHODES – INSUFFICIENT EVIDENCE ON MANUFACTURING  [53]
ALBERT RHODES’S IMPORTING  [65]
ALBERT RHODES’S SUPPLYING  [68]
FAILURE TO PUT THE DEFENCE CASE  [71]
THE NATURE OF THE SUMMING UP  [77]
APPEALS AGAINST SENTENCE  [85]
            ALBERT RHODES  [86]
            STEPHEN KISSLING  [100]
            GLENN GOLLOP  [117]
            PAUL ROBINSON  [130]
RESULT  [144]

Introduction

[1]        Following a police operation codenamed “Operation Colossus”, a substantial number of people were charged with various offences under the Misuse of Drugs Act 1975.

[2]        There was a trial before Winkelmann J in September, October and November of 2008 involving the five current appellants together with Alex Su (who has not appealed against either conviction or sentence).  The trial was scheduled to run for 12 weeks, although in the event it ran for nine.  Relevant also were charges against Wayne John Smethurst who pleaded guilty prior to trial and was sentenced by Keane J on 29 July 2008: HC AK CRI 2006-092-16424 29 July 2008.

[3]        At the trial there were a total of 78 counts involving six accused.  Not guilty verdicts were returned on some charges and guilty verdicts on others.

[4]        In the grounds of appeal filed, a variety of issues relating to conviction and sentence were signalled, but when the matter came on for hearing the challenges fell into more confined areas.

The appeal issues

[5]        Each of the appellants has challenged all convictions on the basis that the verdicts were returned by a jury of ten.  It was submitted that what occurred did not meet the requirements of s 374(4A) (now repealed) of the Crimes Act 1961 (“the Act”) and further that, in the process which was followed, the possibility of contamination of the jury panel was real and not sufficiently taken into account by the trial Judge.

[6]        Three of the appellants also challenged their convictions on the basis of miscarriage of justice.  Specifically:

(a)Albert Rhodes argued there had been a miscarriage on the basis that the summing up was unbalanced and there was insufficient evidence on some charges to implicate him;

(b)Glenn Gollop argued that there had been a miscarriage because there were errors in the summing up and it was unbalanced; and

(c)Stephen Kissling argued there had been a miscarriage because of the manner in which the Judge summed up to the jury.

[7]        Four of the appellants appealed against their sentences, on the basis that they were manifestly excessive and wrong in principle.  Particularly: 

(a)Albert Rhodes argued that he ought not to have been sentenced to an effective life sentence; 

(b)Stephen Kissling appealed against his effective sentence of 16 years’ imprisonment with a minimum period of imprisonment (“MPI”) of seven years;

(c)Glenn Gollop appealed against his effective sentence of twelve years’ imprisonment with an MPI of seven years.  He argued especially that it was not necessary to impose an MPI; and

(c)Paul Robinson appealed against his sentence of 16 years’ imprisonment with an MPI of seven years. 

[8]        Richard Rhodes did not appeal against his sentence.

Background

[9]        On 27 June 2006, the police executed a search warrant on an apartment occupied by Paul Robinson in central Auckland.  Albert Rhodes was present at the time.  The police found a blister pack of ContacNT, a bottle of hypo-phospherous acid and a baking dish containing traces of methamphetamine.  Digital scales which had traces of methamphetamine, and two books on drug manufacture, were also located.

[10]       Albert Rhodes admitted that $24,000 in cash, found at the time, was his. 

[11]       The police searched a storage area associated with the apartment where they found a large amount of iodine, pseudoephedrine tablets and a significant amount of glassware and other equipment capable of being used for the manufacture of methamphetamine. 

[12]       As a result of documentation discovered, the police later searched another storage area with connections to Albert Rhodes, Paul Robinson and Wayne Smethurst.  There they found a generator, ring burners, tarpaulins, car lamps, portable stoves and other camping equipment and also laboratory glassware, iodine and pseudoephedrine.

[13]       The police subsequently obtained and executed search warrants on storage units in Onehunga which were associated with Albert Rhodes and another person.  They found in excess of 50 kilograms of iodine.  Seven counts in the indictment were founded on this material.

[14]       The police thereafter, pursuant to authorisations issued by a High Court Judge, undertook a covert operation monitoring communications.  This monitoring was initially only of Albert Rhodes and Paul Robinson, but subsequently was expanded to others including Stephen Kissling, Glenn Gollop and Richard Rhodes.

[15]       As a result of the interception of communications and the ongoing surveillance of relevant people, a substantial amount of further drug offending was revealed including the manufacture of methamphetamine on six separate occasions over a period of about six weeks by:

(a)Albert Rhodes, Stephen Kissling and Paul Robinson at a property in the Coromandel Peninsula between 12 and 14 October 2006;

(b)Albert Rhodes, Stephen Kissling and Paul Robinson at an unknown location in Northland between 20 and 22 October 2006;

(c)Albert Rhodes, Stephen Kissling and Paul Robinson at Stephen Kissling’s property at Whangamomona, King Country, between 4 and 5 November 2006;

(d)Albert Rhodes and Stephen Kissling at Waiuku between 17 and 18 November 2006;

(e)Albert Rhodes and Stephen Kissling at Waiuku between 20 and 22 November 2006; and

(f)Glenn Gollop, alone, at Coromandel between 20 and 23 November 2006.

[16]       Following each manufacture, the appellants returned from the various isolated locations and supplied methamphetamine on a commercial basis to people in Auckland.  Paul Robinson had some involvement in supply and Richard Rhodes (who was not directly involved in manufacture) was involved in on-supply of methamphetamine in the North Auckland area.

[17]       In addition, Albert Rhodes, Alex Su and Wayne Smethurst were involved in the importation from China of 8.491 kilograms of ContacNT granules and Albert Rhodes, Stephen Kissling and another were involved in the importation from China of glassware.

[18]       There were a significant number of charges alleging supply.

[19]       Operation Colossus was terminated and between 22 and 25 November 2006 properties known to be associated with the appellants were searched.  The bulk of the charges arose from offending in this June to November period.

[20]       The appellants were charged and some were bailed.

[21]       On 20 March 2007, while on bail, Mr Glenn Gollop was apprehended again and found to be in possession of a large quantity of glassware capable of being, and intended to be used, in the manufacture of methamphetamine which he had purchased from a manufacturing company which was closing down.  Two counts arise from that matter.

The jury issue

[22]       The appellants were arraigned and entered not guilty pleas to an amended indictment on Monday 8 September 2007.  Empanelling and associated activities took most of the morning and the jury were released after some preliminary remarks from the Judge to allow them to make preparations for what was anticipated would be a 12-week trial.

[23]       The following morning, after some preliminary administrative matters had been dealt with and the accused put in charge of the jury, the Judge made introductory remarks and the Crown’s opening commenced.  Prior to the lunch adjournment, the Judge was advised that a juror had expressed concern about the security of her employment if she served on the jury and expressed fears for her personal safety and that of her family.  Steps taken by registry staff led to the view that there was not an employment issue.

[24]       After consultation with counsel, the Judge met with the particular juror in a conference room and reported back to counsel on what she had learnt.  As a result, all counsel agreed that the juror was incapable of serving and the Judge held that it was appropriate to discharge her under s 374 of the Act as being incapable of continuing to perform her duty.

[25]       The Judge considered the options then available, namely to discharge the current jury and to empanel a new jury or to continue with a jury of eleven.  She acknowledged that there were difficulties with both options and was advised that empanelling a further jury at that time was unlikely to be a practical alternative.  She decided on balance that it was appropriate to continue with a jury of eleven.

[26]       At the request of Mr Ellis, Winkelmann J specifically raised with the reluctant juror whether she had discussed her concerns with the rest of the panel and as a result of what she was told, the Judge concluded that there was “no basis for any concern that the balance of the jury would have been contaminated by her irrational fears”.

[27]       The trial continued thereafter with some occasional non-sitting days for a variety of reasons.  The Crown case concluded.  Applications under s 347 of the Act which were heard and determined.  Defence evidence was called.  The jury heard the Crown closing address and some of the defence closing addresses until Friday 31 October 2008.

[28]       On Monday 3 November 2008, the Judge was informed that one of the eleven jurors had received a note pushed under her door during the previous weekend which said:

Hey u look beautiful when you’re necked in your home turn me on c-u soon ps tell anyone u die

[29]       The Judge conducted a private interview with the juror, ascertained that the juror was distressed and fearful and concluded that she was unable to continue to perform her duty.  Counsel agreed that she ought to be discharged under s 374(3)(a) of the Act.

[30]       As it was clear that the rest of the jury knew about the note (but had not seen it), and although they were told that the juror had been “discharged for reasons that were personal to her and in relation to that note”.  Winkelmann J said to the remaining ten jurors:

[1]         . . . I have to make sure that this has not affected your ability to try this case in accordance with the evidence and in accordance with the oath that you took at the commencement of this trial.  The reason I must make sure of that is because it is very important that the accused be given a fair trial.  What I want to know is whether you think your knowledge of this incident will affect you in any way in your deliberations when you retire to consider your verdict.

[2]         I am going to ask now that you retire again to the jury room and Mr Foreman, I’m going to give you an important task.  Without further discussion I am going to ask you to ask each juror if they feel that their deliberations will be affected in any way by this incident and I want you to record for me just a response, not the individuals, but the numbers.

[3]         Members of the jury, I stress to you it is very important that you be candid in your response to that question.  All right, so if you can retire now and Mr Foreman if you can do that for me, thank you.

[31]       The Foreman subsequently confirmed in open court that the trial would proceed as if it was ‘as before’.  Winkelmann J recorded:

[3] ... Mr Foreman advised that the response from the jurors was that they could all proceed to decide the case in accordance with the evidence and in accordance with the oath that they had sworn.  Mr Foreman said that it would proceed “as before”.   

[32]       Counsel for all of the accused submitted that the trial should be aborted.  The Crown submitted it should continue.

[33]       Section 374(4A) of the Act provided:

4A          The Court must not proceed with fewer than 11 jurors except in the following cases:

(a)         If the prosecutor and the accused consent:

(b)         If the Court considers that, because of exceptional circumstances relating to the trial (including, without limitation, the length or expected length of the trial), and having regard to the interests of justice, the Court should proceed with fewer than 11 jurors: and in that case –

(i)the Court may proceed with 10 jurors whether or not the prosecutor and the accused consent:

(ii)the Court may proceed with fewer than 10 jurors only if the prosecutor and the accused consent.

[34]       Two issues were before the trial Judge and they are the subject of the appeal before us, namely:

(a)whether there were exceptional circumstances such that the Judge could determine to proceed with fewer than 11 jurors having regard to the interests of justice notwithstanding the absence of consent; and

(b)whether there had been any contamination of the jury panel in the discussions which had taken place between the eleventh juror and the remaining ten members of the panel.

[35]       Winkelmann J concluded, in terms of the decision in R v Wong [2008] 3 NZLR 1 (SC), that there were exceptional circumstances and that it was in the interests of justice that the trial could continue. She was also satisfied that there was no likelihood of contamination of the remaining ten jurors. Having reached that conclusion, Winkelmann J told the remaining jurors that the discharge of the juror was irrelevant to the case and that they should put it out of their minds. That direction was repeated in her summing-up.

[36]       After police inquiries had established that the note was unlikely to be connected with the trial, at the request of defence counsel, the jury was advised of this position.

[37]       All of the conclusions reached by the Judge were challenged in the appeal.

[38]       The first issue is whether there were exceptional circumstances sufficient to satisfy the s 374(4A) criteria.  This is not a matter of discretion but of judicial assessment.

[39]       The factors of relevance to that inquiry include:

(a)there were six accused and fourteen counsel involved in this trial which had run for nine weeks; 

(b)the jury had heard all the evidence and a substantial part of the closing addresses of counsel;

(c)it was already two years since the alleged offending;

(d)there would be logistical difficulties in scheduling a new trial;

(e)repeating this trial would mean that other cases would be delayed and there would be a general waste of a scarce resource;

(f)there was not a significant involvement of lay witnesses and no personalised complainant who would be required to give evidence again; and

(f)if the trial had started afresh after the problem with the twelfth juror on the second day, this conundrum would not have arisen at the end of the trial.

[40]       These factors were all weighed and considered by Winkelmann J.

[41]       We do not accept that a trial scheduled to run for 12 weeks is the norm.  Nor, for that matter, are nine week trials, which is the length to which this trial in fact ran.  Although long trials will not necessarily trigger the “exceptional” criterion, they do give rise to exceptional matters that do not arise in shorter trials.  For that reason very long trials can, by virtue of their length, properly be considered out of the ordinary (Wong).  The stage at which this issue arose, in the closing days of the trial, also provides an “exceptional reason” for completing the trial instead of starting over again with a new trial. A trial of this length and complexity, involving a number of accused and large volumes of evidence, is within the scope of s 374(4A).

[42]       In R v Harris [2008] NZCA 298, the matter was considered further. That case involved a trial of multiple accused on Misuse of Drugs Act charges. During the trial, two jurors were discharged, and on appeal it was argued that the trial ought not to have been continued with only the remaining ten jurors because the criteria in s 374(4A) were not met. This Court declined to interfere with Allan J’s decision to proceed with ten jurors. It noted that while trials of four or more weeks are not rare, they “do not represent the norm”, and “[a] long trial is ... of itself distinctly out of the ordinary”. The Court observed that very long, complex cases with multiple accused are what Parliament had in mind when it enacted s 374(4A), and observed:

[39]       There is a real risk, if that bar on exceptional circumstances is set too high, that Judges, conscious of the prospect of numbers falling to ten, will be driven to retain a juror notwithstanding disability or incapacity.

[43]       We are satisfied that exceptional circumstances existed and the assessment of the Judge was correct.

[44]       The second issue is the interests of justice.  This Court in R v Morris [2001] 1 NZLR 1 at [16] said:

Public confidence in the criminal justice process depends in large part on the fairness of the trial process.  It is equally important that those convicted of crimes have no objective reason to doubt the fairness of that process.  Many appellants subjectively consider they have been unfairly convicted.  That obviously is not enough.  But if there is a real risk that a fair-minded and impartial observer aware of all the relevant circumstances might reasonably feel the same, grounds exist for this Court to intervene.

[45]       We reiterate those sentiments.  There was nothing of substance identified before the Judge which suggested other factors which needed to be weighed or assessed.  The timely disposal of allegations of criminal behaviour is in the interests of both accused and the public generally.

[46]       Section 374(4A) recognises that, in some circumstances, a trial can be concluded with fewer than 12 jurors.  The circumstances must be exceptional and to proceed with a reduced number must be in the interests of justice.  The recognition that the possibility can occur undermines the more extreme positions of some counsel with regard to the effect of the New Zealand Bill of Rights Act 1990 and generalised submissions about fairness.  Despite the intensive and rigorous scrutiny of some counsel, we are satisfied that the stringent preconditions were met and the decision to continue and complete the trial was properly available.

[47]       We do not overlook the associated issue of possible contamination.

[48]       The Judge undertook a specific exercise into this aspect.  The answer to the inquiry made of the jurors was unequivocal.  It is unhelpful to speculate about matters which have no evidential foundation.

[49]       The Judge, at the beginning of her summing up, said:

[13]       I am also going to remind you at this point about what I said to you, I think it was the day before yesterday.  You are all aware that there was an incident involving a juror that resulted in her being discharged from the jury.  I directed you then, and I repeat that direction now, that you must put that incident from your mind.  It is irrelevant to this case and to the matters you must determine.

[50]       After the jury had retired, the Judge (at the request of counsel) returned to the issue again and said:

[472]     Earlier today I directed you about the incident involving the juror who was discharged the day before yesterday.  What I wanted to tell you was that police inquiries suggest that that note that was received by the juror was unrelated to this trial in any way, so it had no relationship to it. Now, that does not alter at all what I said to you before.  The same rule applies which is just put it out of your mind.

[51]       We are satisfied that no grounds exist for concluding that there was any miscarriage of justice in what occurred.  Nor was there, in terms of Morris, any risk that the criminal process in this case would be perceived as unfair.  In light of both the Foreman’s assurance to the Judge that the jury was confident it would proceed “as before” and the Judge’s express reminder to the jury that it was not to consider the incident of the discharged juror, there was no risk that warrants this Court’s intervention.

[52]       The statutory requirements were met.  The ground of appeal, advanced by all the appellants that the trial was improperly permitted to continue with only ten jurors, is dismissed.

Albert Rhodes – Insufficient evidence on manufacturing

[53]       This appellant was convicted on five manufacturing charges and submits in his appeal that, in respect of three of them, there was insufficient evidence.  In the course of oral submissions, it became clear that the challenge was not that the Crown had failed to prove that manufacture had occurred, but specifically that Albert Rhodes was actively and knowingly involved in what happened.

[54]       The entire Crown case involved an analysis of intercepted communications, surveillance evidence, covert searches, evidence obtained upon termination and scientific evidence.  It was at the heart of the case that the jury, without making suppositions or jumping to conclusions, were entitled to draw inferences from the totality of the material.

[55]       Albert Rhodes gave evidence in which he provided an answer for every piece of incriminating evidence against him.  Whether that was credible or probative was an issue for the jury alone.  Despite the painstaking analysis which Mr Tennet undertook, we are satisfied that, on the totality of the available material, it was open to the jury to conclude that Albert Rhodes was actively and knowingly involved in each of these incidents. 

[56]       We highlight some of the critical material.

[57]       In respect of the manufacture on the Coromandel Peninsula between 12 and 14 October, although there were no phone calls attributable to the appellant during this period, there was clear evidence of Albert Rhodes having met Paul Robinson and after the transfer of material from one vehicle to another, the two men set off together from Papakura and were observed crossing the Kopu Bridge.  It was accepted that there was evidence that traces of methamphetamine were found at Glenn Gollop’s property on 31 October, but the officers did not identify the concealed shipping container on the property until 23 November.

[58]       When Albert Rhodes’s home address of 419 Hillsborough Road, Mt Roskill, was searched at the termination of the operation, the police discovered a night vision scope, three Uniden walkie-talkies, a Magnum GPS (global positioning system), $7,000 in cash and a map of the Coromandel.  The scientific evidence was clear that there had been the manufacture of methamphetamine in the buried container at the Coromandel address.

[59]       In respect of the manufacture at an unknown location in Northland between 20 and 22 October, there were intercepted communications of various accused arranging to meet and sourcing materials.  There was evidence that a mobile phone attributed to Albert Rhodes was being used in Northland at the relevant times.  The surveillance placed Albert Rhodes, in company with Mr Smethurst, Mr Robinson and another person, and he was seen removing material from an address in Onehunga.

[60]       Mr Robinson’s vehicle was seen at Albert Rhodes’s address.

[61]       In respect of the Whangamomona manufacture between 4 and 5 November, again there was no use of a cellphone attributed to Albert Rhodes in the relevant timeframe.

[62]       These matters were all subject to s 347 of the Act.  As the Judge noted, in addition to the various particular strands, the Crown was entitled across the six incidents of manufacture to invite the jury to consider propensity evidence. 

[63]       We are satisfied that there was a clear evidential foundation for the essential elements of all the manufacturing charges and for Albert Rhodes’s active and knowing involvement in the activities.  The jury must have rejected the appellant’s evidence that he thought he was on fishing trips or had other innocent explanations for where he was and what he was doing, but these were fundamentally jury questions. 

[64]       There is no substance to this ground of appeal.

Albert Rhodes’s importing

[65]       There was a challenge to the conviction for importing pseudoephedrine, together with Alex Su and Wayne Smethurst between 1 October and 10 December 2006.  Again the fact of the importing is not challenged, but Albert Rhodes’s involvement is.  The Crown contention was that Albert Rhodes had sent Mr Su to China to work with Mr Smethurst in acquiring the drug for shipping back to New Zealand in the car.  There was clear evidence of Mr Su’s travel and his involvement with Mr Smethurst.

[66]       Both in the summing up, and during evidence, the Judge had been at pains to remind the jury that out of court statements made by Mr Su and Mr Smethurst were not evidence against Albert Rhodes.

[67]       In his evidence, Albert Rhodes agreed that he had arranged for Mr Su to take money to give to Mr Smethurst but said that he had no idea that the car (which was what he wanted) would have drugs concealed in vases in it.  That was a pure jury issue and there is no basis upon which this Court should interfere with the jury’s assessment of the totality of the material.

Albert Rhodes’s supplying

[68]       Albert Rhodes also challenged convictions on a variety of supply charges and argued that, because he was acquitted on other charges on other dates, there was inconsistency in the jury’s verdict.  In his evidence at trial, Albert Rhodes said he was the supplier of cannabis but not methamphetamine and counsel submits that it was unreasonable to accept his explanation in respect of some matters and not others.

[69]       The appropriate test was discussed by this Court in R v A [2007] 2 NZLR 218 and at [77] it was noted:

Time after time in appeals to this Court it is argued, as counsel argued here, that because the jury must have “disbelieved” a witness to acquit on one count, it was inconsistent to rely on her to convict on another count. The argument is utterly fallacious; there may be all sorts of valid reasons why the jury may be convinced by a witness on one count but not on another. To put this another way, there is no reason why credibility must be static. As was said in R v G [1998] Crim LR 483, “A person’s credibility is not a seamless robe, any more than is their reliability.” It is not necessarily illogical for a jury to be convinced as to the credibility of some aspects of one person’s story, but not as to others, a fortiori where it is convinced, but not beyond a reasonable doubt.

[70]       Mr Tennet submitted that the only discernible differentiation was that the jury convicted on those counts where there was more than one page of phone call evidence, and acquitted on those where there was only one page.  We are not attracted to that proposition, but, in terms of R v A this is a jury issue.  The proper evidential foundation existed and no injustice has been demonstrated.

Failure to put the defence case

[71]       It was submitted that Albert Rhodes’s case was not fairly put.  It was submitted that he was in a substantially different category to the other accused in that he gave evidence which included extensive cross-examination as a result of which he was in the witness box for six days. 

[72]       There is no question that a trial Judge has a duty to ensure that all grounds of the defence are properly placed before the jury.

[73]       The reality, however, is that Albert Rhodes’s position was that he was not criminally involved in any of the activities alleged against him.  In his evidence he provided innocent explanations for each of the allegations levelled against him.  As the notice of appeal succinctly records, his defence was, in respect of all matters:  “I didn’t do it”.

[74]       Winkelmann J expressly laid out the “three planks” of Albert Rhodes’s defence in her summing up: first, that police had misinterpreted the evidence of the intercepted communications; secondly that he denied the charges; and thirdly that he had proffered explanations of his conduct.  The Judge also set out Albert Rhodes’s defence, throughout, on a count by count basis.  The nature of the Crown case, the fact that it was circumstantial, involved the drawing of inferences, the reliance on propensity evidence and a general networking of activity, necessarily required more elucidation. 

[75]       There is nothing which counsel is able to point to which suggests that any material matter of defence was omitted, or that there was a failure to direct the jury’s attention to issues which were in the appellant’s favour, or upon which he had sought to rely.

[76]       We find no substance in the challenges to Albert Rhodes’s conviction in respect of any of these specific grounds.

The nature of the summing up

[77]       Mr Ellis, on behalf of Mr Kissling, summarised the position on this aspect of the appeal in this way:

3.1         It is submitted that the presiding Judge’s summing up of the case runs to approximately 45,000 words.  This was delivered in one day.  It was difficult for seasoned counsel to keep pace let alone a tired and possibly concerned Jury.  Having been fed a diet of documents for weeks, it is unsurprising that the Jury’s first question was to ask if a transcript was available.

3.2         It can not be said that the presiding Judge did not put the Appellant’s defence to the jury. However, considerably more time was devoted to a detailed explanation of the Crown case.  Moreover, the Crown case was not subject to the same scrutiny and implicit criticism.  At best the bare bones of the defence were put in a way that lacked balance with the detail devoted to the Crown’s case.

[78]       Mr Tennet had a related submission for Albert Rhodes and in his grounds of appeal Mr Gollop also raised similar issues.  Mr Kaye did not pursue the point with oral argument on behalf of Mr Gollop, perhaps in light of the instructions at sentencing that Mr Gollop admitted all his offending.

[79]       As this lengthy summing up was being delivered (it took the whole of a sitting day), the jury had in their hands a written, detailed direction in respect of every count in the indictment.

[80]       Only by way of example, we set out in full the document relating to Albert Rhodes on Count 1:

ALBERT RHODES – COUNT 1

POSSESSION OF A PRECURSOR SUBSTANCE WITH THE INTENTION THAT IT BE USED TO MANUFACTURE METHAMPHETAMINE: HIGHGATE APARTMENTS JUNE 2006

Has the Crown proved beyond reasonable doubt that:

1.On 27 June 2006 at Auckland, Albert Rhodes had in his possession the precursor substance pseudoephedrine?

2.Albert Rhodes intended that the precursor substance in his possession be used (by him or some other person) in or for the manufacture of methamphetamine?

If you answer YES to BOTH questions, you must find Albert Rhodes GUILTY of Count 1.

If you answer NO to EITHER question, you must find Albert Rhodes NOT GUILTY of Count 1.

Possession:

For the accused to have possession of an item, he must have:

·Control over the item. (Note that control does not need to be physical or exclusive.  What matters is the ability to control the item.)

·Knowledge of the existence of the item and of the ability to control the item.

·An intention to exercise control over the item.

Evidential direction:

You must not have regard to the intercepted conversations or text messages in relation to this count.

[81]       Three and a half hours after they retired to deliberate, the jury asked if they were to receive a transcript of what the Judge had said.  We see that as a neutral inquiry.  They were told they were not which is understandable in light of the 99 pages of jury questionnaire which they had in their hands.

[82]       In answer to the inquiry, the jury was advised also that they could, in writing, ask the Judge to repeat any of the directions and that she would come back into Court to do so.

[83]       It will always be a question of judgment and balance as to the manner and speed of presentation of a summing up.  Whether in a lengthy and complex trial such as this it is better to be fulsome or to adopt a summary approach, and whether the presentation should be confined to one day or more must be responsive to the total circumstances and are questions for the individual judge.

[84]       Nothing advanced before us suggests that there had been a failure of the Judge’s fundamental duty.  We see the combination of the written material and the oral presentation as a masterly capturing of the crucial issues.  We find no substance in this ground of appeal against conviction.

Appeals against sentence

[85] All appellants, except from Richard Rhodes, appeal against the sentences imposed upon them (see above, at [7]). There is a commonality of approach, but we look at each in turn bearing in mind parity issues raised and some general questions as to the level appropriate for sentencing for this type of offending.

Albert Rhodes

[86]       Albert Rhodes was to be sentenced on 32 counts which were as follows:

Offence	Total	Maximum Penalty
Manufacture methamphetamine	5	Life imprisonment
Supply methamphetamine	13	Life imprisonment
Offer to supply methamphetamine	5	Life imprisonment
Conspiracy to manufacture methamphetamine	1	14 years’ imprisonment
Importation of pseudoephedrine	1	8 years’ imprisonment
Possession of equipment	3	5 years’ imprisonment
Possession of precursor substance	1	5 years’ imprisonment
Possession of materials	3	5 years’ imprisonment

[87]       Winkelmann J concluded that Albert Rhodes was the person in charge of, and directing, a major drug manufacturing and supply ring.  She concluded that he was responsible for the manufacture of approximately 1.4 kilograms of methamphetamine and in addition had supplied, or offered to supply, in excess of 365 grams of methamphetamine.

[88]       The Judge was required to take into account his previous offending which notably included that he had been sentenced to a total of fourteen and a half years’ imprisonment in Australia for serious drug offending in 1998 and his appeals against both conviction and sentence were dismissed.  He was deported to New Zealand in May 2004 after serving part of those sentences.

[89]       Arising out of that same offending in Australia, there was a pecuniary penalty order in the amount of $20 million owed by Albert Rhodes for cannabis offending, and a further $1 million for his methamphetamine offending, none of which had been paid.

[90]       In the High Court, and in the written submissions prepared for us, there was substantial discussion about the current relevance of earlier decisions of this Court including R v Curtis [1980] 1 NZLR 406, R v Beri [1987] 1 NZLR 46 and the extent to which they were consonant with what has subsequently been said in R v Fatu [2006] 2 NZLR 72.

[91]       In the course of the appeal hearing, we drew counsel’s attention to the decision of this Court delivered that day in R v Chen [2009] NZCA 445 as a result of which there can be no doubt about the current approach towards life sentences for serious drug offending. This Court in Chen emphasised the appropriateness of life sentences in cases of serious and large-scale drug offending.

[92]       Albert Rhodes has to be dealt with as falling within the most serious of cases.  The substantial manufacture occurred over a period of time in a determined and professional manner.  The further equipment and materials discovered are consistent only with an ongoing enterprise.  There was a highly orchestrated supply arrangement following the manufacture.

[93]       All of his offending was markedly aggravated because it was committed while Albert Rhodes was on bail for drug related offending and occurred before the expiry of the terms which had been imposed upon him in Australia and in respect of which he was on early release.

[94]       The facts spoke for themselves.  Significant finite terms of imprisonment had done nothing to deter him and as Winkelmann J said, he was “a menace to society”.

[95]       We have no hesitation in concluding that the approach adopted was totally within discretion and in fact anything less would have been an inadequate response to this man’s total offending.

[96]       Comparisons with the sentences imposed in Australia are unhelpful.

[97]       Whatever challenges may be made around the edges as to the precise quantities which were involved in specific counts, however much there could be quibble with minutiae, the overall thrust of this man’s criminality and culpability is beyond question.

[98]       An effective term of life imprisonment was inevitable.

[99]       Mr Tennet did not attack the concurrent sentences which were imposed on the other matters, and we do not advert to them either.  His appeal against sentence cannot succeed.

Stephen Kissling

[100]    Mr Kissling was found guilty of manufacturing methamphetamine on five discrete occasions over six weeks which the Crown submitted yielded in the vicinity of 1.4 kilograms of methamphetamine.  He was implicated in the supply, or offer to supply, of 226 grams of methamphetamine. 

[101]    In all he was to be sentenced on 22 counts on:

Offence	Total	Maximum Penalty
Manufacture methamphetamine	5	Life imprisonment
Supply methamphetamine	8	Life imprisonment
Offer to supply methamphetamine	3	Life imprisonment
Conspiracy to manufacture methamphetamine	1	14 years’ imprisonment
Possession of equipment	2	5 years’ imprisonment
Possession of precursor substance	1	5 years’ imprisonment
Possession of materials	2	5 years’ imprisonment

[102]    The effective sentence imposed upon him was 20 years’ imprisonment with a minimum non-parole period of nine years.

[103]    Again it is the term on the lead sentence which was focused on by Mr Ellis, rather than the various concurrent sentences imposed on the rest of the offending.

[104]    As well as submitting that generally the sentence was manifestly excessive, particular additional matters were raised.

[105]    First, it was alleged that there was a factual mistake in that the Judge noted that Mr Kissling was a recidivist large scale methamphetamine manufacturer.  This was a reference to the fact that, in Australia in 1997 and 1998, he was sentenced to a total of eight years’ imprisonment for trafficking and supplying methamphetamine. 

[106]    Mr Ellis’s argument was that, because Mr Kissling did not have previous convictions for drug manufacturing he could not be recidivist in terms of the definition of that word in the Concise Oxford Dictionary (11ed 2006).  We find the argument facile.  Mr Kissling demonstrated, over a lengthy period of time, a commitment to offending in respect of misuse of drugs legislation on both sides of the Tasman.  The Court was faced with a convicted criminal re-offending in this area.  No sensible error of fact occurred.

[107]    A legal error was asserted in that the Judge did not make allowance for the fact that some of the manufacturing had taken place at remote places where the dangers were less than if they had been carried out in a crowded city apartment building.  We acknowledge that there was less danger to other people, but the subterfuge which was involved in the present circumstances is, in and of itself, an equally aggravating factor.  There was no error of law.

[108]    There was next a challenge to the fact that having determined a starting point of 16 years’ imprisonment, it was wrong to apply an uplift.  Responsibly, Mr Ellis accepted that the starting point itself was unassailable.  Winkelmann J did not impose an uplift for Mr Kissling’s role in the total network, but did for the additional offending.  She concluded that three years was appropriate with a further one year because of his own previous drug offending.

[109]    Mr Ellis submitted that it was artificial to accumulate sentence terms in this way and that the possession of equipment and materials and involvement in distribution are inherently associated with manufacture and should not be otherwise reflected.  We do not agree.  Each of these counts involved discrete examples of offending and Mr Kissling’s immersion in the drug scene was properly reflected by the uplifts which occurred.

[110]    We do not accept Mr Ellis’s submissions that this total offending came closer to the bottom than the top of the top band of Fatu.  The timing and determination of his activities points in the opposite direction.  Although Mr Kissling was only 36 years of age, in both New Zealand and Australia he had demonstrated a commitment to active and significant involvement in large scale misuse of drugs activities.

[111]    Upon any objective assessment of the totality of the offending and his history, an effective sentence of 20 years’ imprisonment can only be seen as lenient.

[112]    We are told that since the sentencing by Winkelmann J, Mr Kissling has pleaded guilty to separate and additional charges relating to manufacturing methamphetamine and possession of equipment, precursory substances and materials for the purposes of manufacturing methamphetamine.  This relates to offending which occurred on 31 March 2007 while on bail for the earlier Operation Colossus offending.  What effect that will have on his overall culpability we do not attempt to surmise.  It is not a factor which is weighed by us in determining the appeal presently before this Court.

[113]    A person who offends while on early release from prison and particularly when on bail for more offending is unlikely to be seen as demonstrating positive aspects of reform.

[114]    The Judge recognised that she should not impose a sentence which would be “crushing” on a “relatively young man” but the totality had to be recognised in a meaningful way.  Mr Kissling was treated with mercy.

[115]    As far as the MPI is concerned, the Judge said:

[90]       I then turn to consider a minimum period of imprisonment.  I accept the Crown’s characterisation of you as a recidivist, large scale methamphetamine manufacturer.  Although you were not the king-pin, you were undoubtedly his trusted sidekick.  Given the seriousness of the offending and your personal history, I am satisfied that a minimum period of imprisonment is necessary to have the necessary effects of deterrence, denunciation and protection of the community.  I consider that a minimum sentence of imprisonment of 9 years is appropriate.

[116]    There cannot be a serious challenge to that assessment and the appeal against it is equally unsustainable.

Glenn Gollop

[117]    Glenn Gollop was not found guilty of the manufacturing charges which his co-accused faced and upon which they were convicted, but was convicted of a stand-alone count and other charges. 

[118]    He was to be sentenced for:

Offence	Total	Maximum Penalty
Manufacture methamphetamine	1	Life imprisonment
Supply methamphetamine	1	Life imprisonment
Offer to supply methamphetamine	1	Life imprisonment
Possession of methamphetamine for supply	1	Life imprisonment
Possession of equipment	3	5 years’ imprisonment
Possession of precursor substance	2	5 years’ imprisonment
Possession of materials	1	5 years’ imprisonment

[119]    Winkelmann J treated manufacture of methamphetamine as the lead sentence, agreeing with both counsel that it was to be treated as a stand-alone matter for which Mr Gollop alone was culpable.  The Judge concluded that it was substantial, had commercial aspects and was between bands 2 and 3 of Fatu, so adopted a nine year starting point.

[120]    There was an uplift of three years because she found that there was an inevitable inference of supply by Glenn Gollop and clear evidence of an intention to manufacture in the future, especially with regard to the offending which occurred while on bail.  The Judge did not include any further uplift for his previous offending.

[121]    The Judge considered that a minimum term of imprisonment was necessary to hold him accountable for the harm done, to deter him and others and to protect the community.

[122]    Mr Kaye’s submissions began by asserting that the nine year starting point adopted by the Judge was not consistent with Fatu and drew particular attention to the decision of this Court in R v Mosley [2008] NZCA 510 which he submitted involved more serious offending but was premised on a nine year starting point. He referred to various decisions of the High Court, in particular R v Burdett HC AK CRI-2007-092-5673 20 November 2007 where Harrison J took a starting point of ten years for another person involved in four of the manufacturing counts faced by other appellants in the present case and where the total yield was greater than the estimate for Mr Gollop’s single manufacture.

[123]    There can be no question but that Mr Gollop’s offending fell between bands 2 and 3.  The assessment of not less than 250 grams of methamphetamine was clearly available to the Judge on the totality of the evidence and Winkelmann J was in the best position, having heard all the evidence, to make it.  We can see no basis for concluding that the nine year starting point was outside of the properly available discretion in light of previous authorities.  We do not accept Mr Kaye’s submission that the starting point should have been seven or eight years.

[124]    The Judge went on to say:

[180]     I accept the Crown’s submission that a significant uplift is required in respect of the other offending.  The other offending evidences the extent to which you were thoroughly immersed in all aspects of drug dealing and drug manufacture.  It is apparent that you were generating significant profits for yourself from that offending.  The other offending you were convicted of plainly shows that you were involved on an ongoing commercial basis in the supply of methamphetamine to others.  The supply offending would sit within band 2 of Fatu, and for that alone the sentence range is between 3-9 years imprisonment.

[181]     Although exact quantification is not possible, the transcripts strongly support an inference that this was a supply of moderate commercial quantities.  Furthermore, a significant uplift is also justified on the basis of the convictions which clearly reflect an intention to manufacture in the future.  I refer to the possessory offences in relation to equipment and pre-cursor substances.  Finally, I identify as an aggravating factor, justifying an uplift, that you committed the offences relating to the glassware while on bail.

[125]    We cannot fault that reasoning or the application of settled principle which it involves.

[126]    Again, had the Judge adopted a greater uplift, particularly in light of the offending which occurred while Mr Gollop was on bail, no complaint would have been sustained.

[127]    It is again evident that the trial Judge carefully assessed culpability issues, sensibly applied the guideline judgments and gave the limited consideration which can be permitted for the personal circumstances of an accused.

[128]    We find no basis for any challenge and are satisfied that an effective sentence of nine or ten years’ imprisonment with no minimum period of imprisonment would not have reflected the criminality, culpability and public interest in condemning offending in this field.  Although Mr Gollop eventually acknowledged his involvement in what was established, he chose to put the Crown to proof and there is little basis for an assessment that he is either contrite or necessarily committed to reform.

[129]    There is no basis to interfere with Mr Gollop’s sentence.

Paul Robinson

[130]    Mr Robinson was a party to three of the manufactures of methamphetamine over a period of approximately four weeks from which the estimated yield was 900 grams of methamphetamine.  He was convicted of other associates charges.

[131]    In total, he was to be sentenced on 12 counts:

Offence	Total	Maximum Penalty
Manufacture methamphetamine	3	Life imprisonment
Supply methamphetamine	1	Life imprisonment
Offer to supply methamphetamine	1	Life imprisonment
Conspiracy to manufacture methamphetamine	1	14 years’ imprisonment
Possession of equipment	2	5 years’ imprisonment
Possession of precursor substance	2	5 years’ imprisonment
Possession of materials	2	5 years’ imprisonment

[132]    Again, the lead sentence was imposed on the three charges of manufacturing methamphetamine.  Although Mr Robinson was not convicted of the five counts like Albert Rhodes and Stephen Kissling, his offending still came within band 4 of Fatu.

[133]    Winkelmann J specifically rejected the suggestion that he was a minor or bit player and she took a starting point of 13 years.

[134]    The Crown had submitted that there should have been a starting point of 13-14 years which was consistent with the starting point adopted by Harrison J in Burdett, and by Keane J in Smethurst, but with an uplift for the associated supply-related offending and the possession of precursor substances, materials and equipment and a further uplift to reflect his previous drug offending.

[135]    The Judge reached the finite sentence of 16 years’ imprisonment by taking the 13 years starting point, an uplift of two years for the totality of the offending and a further year in respect of his past convictions, particularly his involvement along with others of his co-accused in the Queensland offending in the 1990s.

[136]    Mr Tait submitted that the Judge was led into error by accepting the Crown’s submissions as to the quantities of methamphetamine produced at the various sites.  We do not accept this challenge which was also advanced in respect of some co-offenders.  Although at trial Mr Robinson was asserting that he was not actually present or involved, there was overwhelming evidence to implicate him and no other challenge is made to his convictions on those counts.

[137]    We are satisfied that the cautious and moderate approach adopted by the trial Judge was fully justified on the evidence, and that the manufacture of methamphetamine at the three relevant sites was in excess of 500 grams.

[138]    The contention that the Judge was wrong not to have followed the reasoning of Harrison J in Burdett and applied a starting point of ten years is unsustainable.  As so often happens when a person pleads guilty on the basis of a summary of fact, the situation is seen in a better light than is the case after there has been a trial and all of the evidence is available for assessment.  We do not see Harrison J’s assessment as informing the appropriate position for Mr Robinson and his culpability.

[139]    Similarly with the uplift, the other offending which had continued over some time and which indicated the likelihood of it being ongoing, had to be marked in a significant way.

[140]    The Judge said that she was minded to increase the uplift for past offending but did not do so, in order to avoid crushing the hopes of rehabilitation on leaving prison for a man who was already in his mid 50s.  That was a merciful approach and does not justify interference on our part.

[141]    For the reasons which have earlier applied, the imposition of a minimum term of imprisonment was, in the circumstances, inevitable.  Mr Robinson was a mature man who was involved over a period of time in serious drug offending and who had previous convictions in Australia.

[142]    Clearly the responses in the past had not worked and the public were entitled to be protected from the perpetuation of his criminal activity.

[143]    There is no basis to challenge the assessments made by Winkelmann J, either in the application of general principle or by considering disparity issues.

Result

[144]    The appeals against conviction and sentence are all dismissed.

Solicitors:

Crown Law Office, Wellington