R v Rodgers
[2012] NZHC 2054
•15 August 2012
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI 2011-085-1856 [2012] NZHC 2054
THE QUEEN
v
PAUL PETER MAWANA RODGERS
Hearing: 30, 31 July, 1 August 2012
Counsel: S K Barr for Crown
N J Sainsbury for Defendant
Judgment: 15 August 2012
JUDGMENT OF THE HON JUSTICE KÓS (Disputed Facts)
Introduction
[1] The defendant Paul Rodgers, known also as Porky Rimene, is a drug dealer. This he admits. But he says he is not as big a dealer as the Crown alleges. So, in pleading guilty to several serious drugs charges, he challenges the Crown summary of facts. The result is the present disputed facts hearing.
[2] This judgment analyses the role of Mr Rodgers, and the extent of his methamphetamine dealing in the 19 or so months between July 2009 and February
2011. These matters are directly relevant to the sentence Mr Rodgers will receive.
R v RODGERS HC WN CRI 2011-085-1856 [15 August 2012]
Background
[3] In August 2010 the police began a covert operation against members of the Hutt-Masterton and Wellington chapters of the Nomads gang. The defendant is “Captain” (or head) of the Wellington chapter. The focus of the operation was the supply of methamphetamine.
[4] In April 2011 three members of the gang, the defendant, John MacDonald and a third member whom I will call Mr A1 were arrested. Arrested too was the defendant’s girlfriend, Kelly Cole.
[5] On 6 October 2011 the defendant pleaded guilty to one charge of supplying methamphetamine, seven charges of offering to supply methamphetamine, one charge of participating in an organised criminal group, one charge of conspiring to obstruct justice, one charge of conspiracy to supply cannabis and one charge of engaging in a money laundering transaction. Most of these charges are brought jointly with MacDonald, Cole and Mr A.
[6] The defendant challenges a number of aspects of the Crown’s summary of facts. As a result a disputed facts hearing was convened under s 24(2) of the Sentencing Act 2002.
Jurisdiction
[7] So far as relevant s 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 hearing or 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 hearing or 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:
(e) either party may cross-examine any witness called by the other party.
(3) For the purposes of this section,—
aggravating fact means any fact that—
(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
...
[8] The approach to be taken in a s 24(2) hearing was summarised by Stevens J
in R v Haarhaus:2
The approach required at such a disputed facts hearing is as follows. First, the Judge must accept as proved all facts, express or implied, that are essential to a plea of guilty: see s 24(1)(b) of the Act and R v Bryant [1980] 1
NZLR 264 (CA) at 269. Second, the Judge may accept as proved any facts agreed on by the prosecutor and the offender: see s 24(1)(a). This applies to the undisputed portions of the Crown summary. [Third,] where facts remain in dispute, the Court must indicate to the parties the weight it would be likely to attach to the disputed fact and its significance to the sentence: see s
24(2)(a). ... [Fourth,] if the prosecutor wishes to rely on a disputed aggravating fact, the prosecutor must prove its existence beyond reasonable doubt: see s 24(2)(c). Evidence as to the existence of such fact may be adduced at a hearing: see s 24(2)(b). [Fifth,] either party may cross-examine any witness called at the hearing: see 24(2)(e). Finally, the Court must
determine whether the prosecutor has proved the existence of any disputed aggravating fact beyond reasonable doubt.
[9] In the present case the third step does not seem to have been addressed hitherto. That is, I am unable to find on the file an indication from the Court as to the weight it would be likely to attach to particular disputed facts. What instead occurred was this. The parties submitted a “joint schedule of facts in dispute”. It set out the parts of the Crown summary of facts that was in dispute. Then it set out the defence and Crown positions on those matters. The net outcome was some 16 particular paragraphs where the parties were at odds. During the disputed facts hearing, however, many of the points of dispute either fell away or self-evidently were not material to potential sentencing outcomes.
Issues
[10] Only two issues now assume real importance:
(a) Issue 1: What was the defendant’s leadership role within the criminal organisation?
(b)Issue 2: How much methamphetamine was the defendant responsible for supplying between July 2009 and February 2011?
[11] In relation to the latter issue there are three important sub-issues:
(a) Issue 2(1): How much methamphetamine was the defendant in
possession of between July 2009 and February 2011; and
(b)Issue 2(2): How much of that methamphetamine did the defendant use himself?
(c) Issue 2(3): How much of that methamphetamine did the defendant
lose?
The rest, it is accepted, he was responsible for supplying.
[12] It is these issues and sub-issues that the Court may be expected to place weight on in sentencing. It is common ground that the lead charge for sentencing purposes is the charge of supplying methamphetamine. It carries a maximum sentence of life imprisonment. The extent of supply by the defendant here was such that he clearly falls within the most serious Band 4 the Court of Appeal’s guideline
in R v Fatu.3 That is, it is clear that the defendant has been responsible for supplying
“very large commercial quantities (500 grams or more)” of methamphetamine. The indicative sentencing level for Band 4 is 10 years to life imprisonment. For Band 3 it is 8 to 11 years.
[13] Initially the defendant’s position seems to have been that he had supplied no more than 7 ounces (196 grams) of methamphetamine.4 By the time the disputed facts hearing began, the defendant’s position was that he had acquired 23 ounces (644 grams) from his supplier, but had consumed himself some 8 ounces (224 grams) and lost a further 7 ounces (196 grams). That would leave just 8 ounces (224 grams, or 448 grams “cut” methamphetamine achieved by “cutting”)5 for public supply.
[14] However, at the hearing the defence called evidence from the defendant’s partner, Ms Cole. Ms Cole admitted that the group had received 36 ounces (1008 grams) in the course of 2009, rather than 23 ounces. Applying the same deductions, that would make the defendant the supplier of 588 grams of pure methamphetamine. The defendant now admits that level of supply.6
[15] It follows that regardless of what was used by the defendant himself or lost, he falls within Band 4 of Fatu.
[16] The Crown disputes the alleged self-use and loss figures, and says the amount supplied was virtually the whole 36 ounces (1008 grams) – plus at least a further 24
ounces (672 grams) in the charge period. In all, 1680 grams. So the Crown says the
3 R v Fatu [2006] 2 NZLR 72 (CA) at [34].
4 Those engaged in the drug trade adhere to imperial weights and measures for larger quantities.
5 i.e. diluting with an equal amount of neutral cutting agent.
6 Closing submissions, at [6.1].
defendant is well within Band 4, not simply towards the bottom of it. The onus is on the Crown to prove these levels of supply beyond reasonable doubt.
Evidence
[17] Four witnesses gave viva voce evidence. One of these was a defence witness.
Evidence of Mr A
[18] The principal Crown witness was Mr A. He is a former patched member of the Nomads. Mr A was a member of the gang established by the defendant to sell drugs in the Wellington region. Mr A was his principal salesman. The contacts he had developed since the 1990s as a member of two different gangs made him a most valuable salesman.
[19] Mr A was recruited by the defendant when they shared adjacent cells at Rimutaka prison. He gave evidence of a difficult relationship between them. Although Mr A is plainly articulate and intelligent, aspects of his personality appear to have caused him to subordinate himself to the defendant over a period of many years. This despite the tendency of the defendant to accuse him of misconduct and disloyalty at the drop of a hat, and then beat him severely with fists and weapons. Mr A’s evidence was that it was better not to fight back in that situation. Better, rather, to take the beating.
[20] Mr A had a long history of convictions for anti-social behaviour, particularly drug-related offences. In 2007 he was released from prison, not for the first time, and attempted to straighten himself out. He left the Wellington region, formed a new relationship and undertook manual work in the new district in which he resided. But when the defendant was himself released from prison, he tracked down Mr A. He then returned to Wellington and resumed his subservient relationship with the defendant. When Mr A was arrested by the police in early 2011 he soon after cooperated with their inquiry. He provided a detailed statement to the police. It sets out details of his own offending and of those with whom he was arrested. Information provided by Mr A was directly responsible for the police recovering a
safe containing $88,000 in cash and drug-related paraphernalia (cutting agent and deal bags). A number of vehicles were also seized, worth $150,000 or so.
[21] I approach Mr A’s evidence with some caution. He is a co-accused. He has, however, pleaded guilty and already been sentenced. His sentence, to more than six years’ imprisonment, involved a substantial discount for the cooperation he had provided. Although that sentence would not be altered by the extent or otherwise of cooperation in relation to the evidence he gave before me, I am alert to the possibility that Mr A may have exaggerated the extent of involvement of the defendant in the offending. Against that fact, however, I note that the defendant himself has pleaded guilty to the charges, and that Mr A did not in any material sense diminish his own participation in the offending. As Mr Noel Sainsbury, who appeared for the defendant noted, his cooperation and conduct may be relevant at a Parole Board hearing. That may occur as early as next year.
[22] I am also alert to the possibility of exaggeration by reason of a grudge held against the defendant. It was plain that Mr A does not like the defendant. It is also plain the defendant does not like Mr A. It was put to Mr A in cross-examination that he was seeking (by giving evidence) to improve his position at the cost of the defendant. It was unsurprising that his response was that he had received a death threat as a result of his actions. He said that would be hanging over his head for the rest of his life.
[23] By and large I found Mr A’s evidence to be reliable. In important respects it was corroborated by documentary evidence. He was plainly intelligent. He also was unusually articulate for a gang member. Allowing for his pent-up dislike for the defendant, his evidence rang true in most respects.
[24] Mr A is subject to a witness protection arrangement. Although his name was not initially suppressed at the time of his conviction and sentencing, both the Crown and defence supported the Crown’s application for suppression of the name of Mr A and the defendant’s supplier (who I will call Mr B). They were agreed that these steps would best enable the giving of extensive and truthful evidence by any non- police witnesses called at the hearing. The Court has express (as well as inherent)
power to make an order prohibiting publication of identification details of any person connected with these proceedings.7 While the overriding public interest is in openness, I note (1) that the evidence was given in open Court, to which the public had admittance and (2) there was a consensus between counsel that suppression of these particular details was in the best interest of justice, for the reason noted above.
[25] Accordingly on 30 July 2012 I suppressed permanently the names of both
Messrs A and B.
Evidence of other Crown witnesses
[26] Other Crown evidence before me came, first, from Senior Constable John Goddard. He is an expert on gang behaviour, and on the Nomad gang in particular. Second was Detective Sergeant Tim Leitch, the Officer in Charge of the police operation referred to at [3]. He gave extensive evidence in relation to documents discovered in the cell of Mr B, from which certain inferences can be made as to the extent of dealing by the defendant in the period July to October 2009. Thirdly, evidence was given by Mr Stephen Mahy, a forensic accountant attached to the Asset Recovery Unit at the Wellington Central Police Station. Mr Mahy undertook an extensive analysis of the bank statements associated with the defendant and his partner, Ms Cole. He also analysed documents located in the cell of Mr B. The essence of Mr Mahy’s evidence was that in the period 9 May to 31 October 2009, the defendant had income from unknown sources of some $662,945. Mr Mahy’s evidence was that the methodology used – a source and disposition income determination method – would always produce an understated financial position for the subject. Never an overstated one. Additional Crown evidence was given by Detective Senior Sergeant Paul Hampton (in relation to communications), Detective Dean Herd (also in relation to communications) and Mr Julian Myers (a motor vehicle valuer).
[27] The evidence of Messrs Goddard, Hampton, Herd and Myers was taken as read and unchallenged. Detective Sergeant Leitch and Mr Mahy were cross-
examined.
7 Criminal Justice Act 1985, s 140(1), which still applies to these proceedings.
Evidence of Ms Cole for defence
[28] On the third day of hearing the defence elected to call evidence. I remind myself that in this hearing, s 24(2)(d) does not apply. Therefore no burden of proof lay upon the defendant to prove anything. Nonetheless, the impact of Mr A’s evidence (which I will describe further below) was such that a decision to call Ms Cole was made by the defendant. He himself did not give evidence.
[29] I approach Ms Cole’s evidence also with considerable caution. She is the partner of the defendant. She has been in a relationship with him for 15 years. They have five children together. Four of those children were placed in permanent care by the Family Court in October 2006. That was a direct consequence of drug-induced domestic violence committed by the defendant against Ms Cole. The fifth child, a baby, was born in 2011. The future care of that child is uncertain given the inevitable imprisonment of the defendant, and the likely imprisonment of Ms Cole for her part in the organised drug dealing the subject of these charges. I record that Ms Cole is jointly charged with the defendant on the most serious of the charges, namely supply of methamphetamine. It is necessary to approach her evidence with caution. First, because she has not yet entered pleas to those charges. Secondly, because any sentencing on those charges will be affected, just as will that of the defendant, by my findings in relation to the extent of drug dealing committed.
[30] In a number of fundamental respects her evidence was the diametric opposite of Mr A’s. In particular as to the extent to which the defendant used methamphetamine personally. Also, as to whether or not a 7 ounce “stash” was lost in late 2009. On neither of these topics did I find Ms Cole’s evidence credible.
[31] Overall I found Ms Cole’s evidence significantly less reliable than that of Mr A. Mr A’s evidence, with some rare exceptions, had the tenor of credibility, whereas that of Ms Cole seemed carefully tailored to respond to the Crown case following disclosure. By way of example, I note that Ms Cole (who is clearly intelligent, and was in charge of the paperwork for the organisation) has been compelled since late 2011 (when she acknowledged the defendant had supplied just
7 ounces of methamphetamine during a two year period) to accept that the number
was actually 23 ounces, and now (at this hearing) 36 ounces. As she admitted, she has a lengthy criminal record of crimes of dishonesty. In my view Ms Cole’s evidence was fundamentally unreliable.
Issue 1: What was the defendant’s leadership role within the criminal organisation?
[32] The nature of the defendant’s leadership role within the criminal organisation was one of the two primary issues identified on the basis of the parties’ joint memorandum of disputed facts. However, I agree with Mr Simon Barr’s submissions for the Crown that during the hearing this issue substantially fell away. I agree with Mr Barr’s submission:
Mr A’s evidence was that he was subservient to Mr Rodgers in the criminal group; this did not appear to be challenged in any real way, either in cross- examination or through the evidence of Ms Cole. It was also noted there was no defence evidence to dispute Mr A’s evidence that Mr Rodgers was the Captain of the Nomads gang, although it is acknowledged the Court may consider that it does not need to resolve that issue.
[33] I note the following points. First, Mr A’s evidence that the defendant was the captain of the Wellington chapter of the Nomads gang at the relevant time was confirmed by the evidence of Senior Constable Goddard. He is a gang intelligence officer attached to the National Intelligence Centre of the New Zealand Police. I accept that he is able to give expert evidence on this issue. Mr Goddard also identified the defendant as the captain or leader of the Wellington chapter of the Nomads gang. Mr Goddard says that:
Rodgers has held the position of captain, or president, of the Wellington chapter of the New Zealand Nomads since at least 2000 although he was first observed by me as a patched member of Wellington around 1997.
Mr Goddard’s evidence was not challenged.
[34] Secondly, the relevant criminal organisation in this case was effectively a discrete part of the Nomads gang, centred upon the defendant. There is no suggestion that the profits from the group’s enterprise were shared in any broader sense with the Nomads gang or its Wellington chapter. The relevant members of the criminal group appear to have been the defendant, Mr A (its principal salesman),
Ms Cole (the defendant’s partner and in effect bookkeeper of the enterprise) and Mr MacDonald (who undertook an enforcement role as required, but otherwise appears to be more peripherally involved). Other members of the defendant’s and Ms Cole’s family had lesser roles again. The profits of the enterprise were received by the defendant and Ms Cole. Apart from bed, board and occasionally pocket money, Mr A appears to have gleaned little, despite his important role as principal salesman and courier. In the latter role was responsible for carrying cash to associates of Mr B, the supplier (he being in prison), and bringing drugs back from those associates to the defendant.
[35] Thirdly, it is plain from the evidence given by both Mr A and Ms Cole that this small criminal group was controlled by the defendant. This he did through his emotional hold over both Ms Cole and Mr A, and by the use from time to time of violence against each of them. I asked Mr A why he remained in a subservient capacity to the defendant. His answer was as follows:
It was, and looking back on it, it appears stupid to me, but over the years I – it had become the norm to me, it had become normalised. I felt a duty to the Nomads to him. I felt a duty as my boss to him, I lived with him – he provided the necessities of life like food and accommodation, I felt indebted to him in a way that he’s a master manipulator – I find it hard to explain it now looking back at it but at the time I felt trapped, indebted, a loyalty, misplaced as it.
Mr A explained that the fact that the defendant was captain of the Nomad’s Wellington chapter, and the senior Nomad boss to whom he was responsible, created an unusual degree of obligation.
[36] Fourthly, while the defendant may have been lower in the overall criminal pecking order than his supplier Mr B (who was not a Nomad member), and was worried about the debt owed to Mr B, I find that was simply part of normal criminal commerce involving a supply chain.
Conclusion
[37] The answer to issue 1 is that the defendant was the head of, and controlled in all practical respects, the criminal organisation responsible for the offences charged in the present indictment.
Issue 2: How much methamphetamine was the defendant responsible for supplying between July 2009 and February 2011?
[38] The core issue in this hearing is how much methamphetamine the defendant was responsible for supplying between July 2009 and February 2011. The starting point is to inquire how much methamphetamine the defendant was in possession of during this period. An assessment must then be made as to how much of that methamphetamine was used personally by the defendant or otherwise lost. The balance, it may be taken, was supplied.
Issue 2(1): How much methamphetamine was the defendant in possession of between July 2009 and February 2011?
[39] It is necessary to divide this sub-issue into two time periods. The first is an initial period between July and September 2009. Some of the methamphetamine possessed then would have come into the defendant’s possession before July 2009. This initial period is essentially undisputed in the evidence of the parties. The later period of October 2009 to October 2010 is disputed. The Crown alleges two consignments were received by the defendant in this period. One in October 2009, the other after October 2010. I will spend some time analysing the evidence about these allegations.
[40] It should be noted, also, that Mr A gave evidence that earlier in 2009 the girlfriend of Mr B, the supplier, brought a safe to Wellington containing 1 kilogram of methamphetamine. The evidence suggests that consignment, if it was provided, would have been received well before the charge period commenced. Mr A’s evidence was that that consignment was substantially sold before July 2009. Although Ms Cole disputed the single 1 kilogram consignment of methamphetamine,
she did not dispute that there were consignments from Mr B to the defendant prior to a 14 ounce tranche in May 2009. There is some supporting evidence of that also in notebooks found in the cell of Mr B. They suggest that at least two consignments of
10 ounces (560 grams) had been sent to “M77”. That is a code he used for the defendant. It is this evidence by Mr A that I have greatest reservation about. But while noting that, I put the allegation to one side. It does not form part of the Crown case, because the event preceded the charge period.
Initial period (July – September 2009)
[41] It is now undisputed that consignments of 14, 12 and 10 ounces were received by the defendant from Mr B between May and September 2009. Those weights total 1.008 kilograms. I accept that because of forward orders by the defendant it is unlikely that the first of those consignments would have been supplied at retail before July 2009. The group would keep stock on hand, hidden in airtight containers and buried in locations such as the defendant’s family cemetery in the Wairarapa.
[42] Also undisputed was that the defendant and Mr A would then “cut” (i.e.
dilute) that methamphetamine with a cutting agent. The cutting ratio was 1 to 1. So
1.008 kilograms could become 2.016 kilograms at street level, worth about $2 million. The evidence was that the criminal group had an established customer base. In part it was based on contacts Mr A had developed in the two gangs he had been a member of. As Mr A put:
We had a very wide customer base, we didn’t need any more ... we had
enough business as it was.
[43] Extensive payment credit was given at wholesale level by the supplier (Mr B) and at retail by the defendant’s group. At the wholesale level, consignments would be delivered and hidden, but paid for only as sold at retail. At the retail level, extensive debts would build up. Sometimes as high as $30,000. On occasion action to enforce payment of debts would be necessary. This is known as “taxing”. In one graphic example, the group seized a Nissan Skyline car owned by one of its debtors. No credit for the value of the car was given the debtor.
October 2009 consignment
[44] The Crown alleges 14 ounces of methamphetamine was consigned from
Mr B to the defendant in October 2009.
[45] Mr A was arrested and found in possession of drug-related paraphernalia in October 2009. He gave evidence that shortly before his arrest he and another associate of the defendant drove to the Waikato – on 8 October 2009 – and picked up a consignment of 15 ounces of methamphetamine from an associate of Mr B. He said he dropped 1 ounce off in Taupo at the request of Mr B and delivered the remaining 14 ounces to the defendant.
[46] I am satisfied beyond reasonable doubt that Mr A’s evidence on this point is
truthful.
[47] First, it appears that in May 2009 a consignment of 14 ounces was received by the defendant. A second consignment of 12 ounces was received, in or about August 2009. On 6 September Mr B and the defendant texted one another. Putting the text together, the dialogue (if it so may be described) reads as follows:
Mr B: Algd my g. I got smethn sortd. Defendant: 2much brutha coz we nearly out.
A week later, Mr B texted the defendant. That text (translated into English) offered to supply a further 10 ounces of methamphetamine for payment of $201,600. Mr A’s evidence was that he collected this consignment in the Waikato on 14 September
2009. That is corroborated by text messages between Messrs A and B on that date. As Mr B was in prison, texts from him must have been sent by a concealed cellphone or by a proxy outside prison.
[48] Secondly, I do not accept the contrary proposition advanced by Ms Cole that the defendant’s text about being “nearly out” was an attempt to hide from Mr B that the defendant still had methamphetamine from previous consignments because he was adding cutting agents. I take the statement in this text at face value. I agree with Mr Barr’s submission:
However, the only way Mr B could have had any idea about the defendant’s rate of sales is by reference to the amount that the defendant had repaid for the consignments. In early September, the defendant still owed Mr B in the order of $115,000 ...
It is in any event clear from the text communications between the defendant and Mr B that the payment transactions were relatively informal. Elasticity of demand, profitability of supply and informality of payment meant the defendant had no need to conceal his actions by ordering more stock than he needed. Reduction in requirements could be explained far more sensibly by reductions in demand, or of payment, at retail.
[49] Thirdly, it follows from this that the defendant’s group was retailing at least an average of two ounces a week of pure methamphetamine (or 4 ounces “cut”). That is consistent with evidence given by Mr A. It follows that the 10 ounces obtained in September, when the defendant was “nearly out” would have lasted only another five weeks at most. Further supply, in October, would have been needed.
[50] Fourthly, Mr A’s evidence as to his travelling to the Waikato to purchase the
15 ounce consignment from Mr B’s associates is corroborated by more text messages sent between Messrs A and B. A text at 12.30 am on 9 October 2009 corroborates the dropping off of 1 ounce in Taupo. Some hours later Mr A is seen texting the defendant to say he is 5 minutes away (i.e. back in Wellington).
[51] Fifthly, there was no suggestion in the evidence that the defendant’s group was in any sense supply-constrained at source. The only material supply constraint appears to have been on the retail side, when Mr A, the principal salesman, was imprisoned.
[52] Despite Mr Barr’s urging to the contrary, I do not find evidence of payments made by the defendant to Mr B of particular assistance. The documents seized from Mr B’s cell do record payments made, but only up to 20 October 2009. It is unlikely that includes any payment for the consignment delivered on 9 October 2009. Those payments are consistent with the receipt of at least 26 ounces (728 grams) of pure methamphetamine between May and October 2009. Receipt of such an amount is
now admitted, but it does not include the now admitted 10 ounce September consignment or the alleged 14 ounce October consignment.
[53] On the other hand, of some (but relatively slight) assistance is the Crown’s
evidence showing substantial cash payments still being made between 21 October
2009 and 3 March 2010 for motor vehicles (some $69,000 expended on three cars and a motorcycle), together with cash payments and relatively small amounts of cash located in the possession of the defendant during searches carried out in October and November 2009. This evidence was provided by Mr Mahy, the police forensic accountant. It suggests some level of continued dealing.
October 2010 consignment
[54] Mr A was in prison from March to October 2010. He gave evidence that after release he was sent by the defendant to collect a further 10 ounces of methamphetamine from Mr B’s associates in the Waikato. Although not directly supported by documentary evidence, I accept that evidence as true.
[55] I note the following considerations.
[56] First, it is inherently probable that upon Mr A returning to the defendant’s service, demand would again rise. The defendant would need stock. The defendant had stashes still available when Mr A was released in October 2010. It is unlikely that was the same product that Mr A had sourced in October 2009. Mr A was valuable to the defendant in his sales role, and sales would have diminished while he was in prison. Ms Cole acknowledged that. It was not suggested sales stopped altogether. But his secondary courier role – collecting drugs from Mr B – could be performed by others if necessary.
[57] Secondly, the existence of a debt of $240,000 by the defendant to Mr B in February 2011 – which Ms Cole admitted – suggests that it is more likely than not that the defendant had acquired at least a further 10 ounces after the last 14 ounce consignment in October 2009.
[58] Thirdly, given a sales level of at least 2 ounces a week in late 2009 when Mr A was fully active in his sales role, it is probable that the defendant would have needed further stock in late 2010 when Mr A returned from prison and resumed work for the group.
[59] Fourthly, Mr A’s evidence on this point was not challenged in cross- examination.
[60] The issue for me in relation to the existence or otherwise of the October 2010 consignment is whether I am satisfied beyond reasonable doubt that such a consignment was made. It is not necessary that I conclude that each of the supporting evidential aspects is established beyond reasonable doubt, so long as my overall conclusion on the issue is to that standard. That is the position here.
Conclusion
[61] The answer to sub-issue 2(1) is that I am satisfied beyond reasonable doubt that within the relevant period (July 2009 to February 2011) the defendant was in possession of at least 60 ounces (1680 grams) of pure methamphetamine.
Issue 2(2): How much methamphetamine did the defendant use himself?
[62] The defence suggests that there is reasonable doubt that all 60 ounces of pure methamphetamine possessed by the defendant within the charge period was supplied. The first reason for doubt given by the defence is that the defendant himself had consumed some 8 ounces (224 grams).
[63] Ms Cole gave evidence that the defendant used an average of 4 grams of methamphetamine a week from July 2009 to August 2010. She said his use was daily, and varied in quantity. Sometimes half a gram. Sometimes binges.
[64] Ms Cole said that the couple’s children were uplifted by CYFS in April 2003 because of domestic violence. The root cause of the domestic violence by the defendant against Ms Cole was his use of methamphetamine. Ms Cole decided to
leave the defendant and “go [her] own way” and get the children back. A Family Court Judge ruled the children be returned to her, but on the basis that there be no resumed relationship with the defendant. Soon after, the defendant was imprisoned. When released in 2005 the relationship resumed. Three days later the children were uplifted by CYFS. At this point the defendant was off drugs, thinking clearly and appreciating the need to remain off drugs. An attempt to regain care of the children was unavailing; in October 2006 a Family Court Judge decided that they should remain in permanent care. Subsequently the two older girls (aged 12 and 13) were allowed to return to Ms Cole. Ms Cole’s evidence was that thereafter the defendant reverted to his use of drugs and again became violent. Ms Cole took the two children and again left the defendant. The defendant was again imprisoned. When he was released at the end of 2007 again he was better, and off drugs. The relationship resumed.
[65] Ms Cole’s evidence was, however, that once the defendant started dealing methamphetamine on a bigger scale in 2009, things changed:
He knew he had a bit of responsibility, you know he had to you know not act like that anymore, he had to be a bit more on to it, and you know considering he is owing money to other people and he had to kind of stay on top of that so he would, he kind of got – he was, he was still using but he would not use the amounts that he was using before.
After 2008 there were no more domestic violence call-outs. The defendant was acting carefully to ensure that the business he was building up was not jeopardised by his own misuse of drugs.
[66] Mr A’s evidence was somewhat different. But there was consistency inasmuch as he says that the consequence of the defendant’s control of the drug dealing group was that he refrained from use of methamphetamine personally. To that extent there is commonality. Ms Cole, though, claimed that to a limited extent the defendant continued to use methamphetamine. Mr A accepted that there were rare occasions where the defendant would again “dabble”. One instance occurred when the national president of the Nomads gang died and the defendant and Mr A attended his funeral. Mr A accepted that he did not know the full details of the Family Court intervention, but he said that he understood from the defendant that he
still had hope he could overturn the decision and regain custody of the children. So both for business and personal reasons he was living a “clean life”.
[67] I am satisfied that Mr A’s evidence on this point is truthful and that the
evidence of Ms Cole is not.
[68] First, I note that on other issues already considered I have found Mr A’s evidence to be substantially truthful, albeit those instances were supported by independent documentary evidence.
[69] Secondly, I note that Ms Cole accepted Mr A’s evidence that the defendant’s attitude to methamphetamine use changed between 2007 (when A left the Wellington region) and early 2009 when he returned. Specifically in 2009 the group’s drug dealing operation became substantial. The defendant was conscious of the risk of losing control of it. And he was conscious of the obligations and risks associated with his indebtedness to Mr B.
[70] Thirdly, the evidence from both sources suggests that the defendant was not so addicted to methamphetamine that he was incapable of adjusting his degree of usage. In these circumstances the evidence that he did so (given by both Mr A and Ms Cole, although to different extents) was entirely credible.
[71] Fourthly, Ms Cole accepted Mr A’s evidence that the defendant did not permit him to use methamphetamine (at least from October 2009). And that there were occasions when the defendant gave Mr A a beating after he caught him using that drug. While I am not suggesting that hypocrisy was anathema to the defendant, it seems to me less likely he would have taken that approach to Mr A if he was himself as a heavy user of methamphetamine as is now suggested by the defence.
[72] Fifthly, as Detective Sergeant Leitch noted somewhat ruefully in evidence, numerous searches of the defendant’s home failed on any occasion to locate drug- related paraphernalia. Ms Cole accepted that the defendant had such paraphernalia. She said that he would take it with him in motor vehicles. However the absence of the detection of such material during the execution of search warrants suggests that
the defendant was, as Mr A has said in evidence, no longer a substantial user during the relevant period.
[73] Sixthly, the fact that the defendant’s attitude to domestic violence changed substantially, and that no domestic violence call-outs were necessary from 2008, suggests there had been a sea change in his attitude to consumption of methamphetamine, consistent with the evidence given by Mr A.
[74] Overall I accept that the defendant had turned over a new leaf, in part to improve his relationship with Ms Cole and their children, but also in large part to manage effectively what had become a very profitable commercial enterprise (and also one with substantial financial and personal risk to him).
Conclusion
[75] The answer to sub-issue 2(2) is that I am satisfied beyond reasonable doubt that the defendant did not make personal use of the methamphetamine in his possession during the charge period to a material extent.
Issue 2(3): How much methamphetamine did the defendant lose?
[76] The second reason for doubt as to the supply level suggested by the defence was the loss of a buried 7 ounce stash when a bulldozer disturbed it. This was said to have occurred after Mr A was arrested in October 2009. He was remanded in custody between 17 and 30 October 2009. After release it was discovered that the 7 ounce stash had been shifted by the bulldozer.
[77] Ms Cole gave evidence that the stash was never relocated, and as a result Mr A (who had been one of two persons responsible for burying that stash) was billed several hundred thousand dollars. Not, however, that he paid it.
[78] Mr A gave evidence that he and the defendant’s nephew spent hours looking for it. It took them a couple of days but they did find it, in part through the use of metal detectors. He described returning the missing stash to the defendant at his
sister’s house in Berhampore and he described the general euphoria associated with its recovery.
[79] I accept the evidence of Mr A on this topic, and dismiss that given by
Ms Cole.
[80] First, for the reasons given earlier I prefer generally the evidence of Mr A
over that of Ms Cole.
[81] Secondly, I note that while Mr A was cross-examined on the supposedly loss of the stash, the suggestion that Mr A was held responsible for that loss and billed accordingly, was not put to him. It appeared to me to be an invention by Ms Cole in the witness box. She had been present while Mr A gave his evidence.
[82] Thirdly, the continued participation of Mr A in the dealing group in the period up to his incarceration in March 2010, and then thereafter upon his release in October 2010, seems to me inconsistent with the proposition that so valuable a stash had not been recovered and returned. So catastrophic a loss would have fundamentally altered the group’s relationship. But apart from a possible bill against his name for the loss, which I reject, nothing seems to have changed.
Conclusion
[83] The answer to issue 2(3) is that I am satisfied beyond reasonable doubt that the 7 ounce stash was recovered and returned to the defendant.
Conclusion
[84] In this judgment I have found as follows:
(a) The defendant was the head of, and controlled in all practical respects, the criminal organisation responsible for the offences charged in the present indictment.
(b)During the relevant charge period (July 2009 to February 2011) the defendant was in possession of at least 60 ounces (1680 grams) of pure methamphetamine.
(c) The defendant did not make personal use of the methamphetamine in his possession during the charge period to a material extent.
(d)The defendant did not lose any material quantity of that methamphetamine.
[85] Sentencing of the defendant will take place on 4 September 2012 at
9.00 am.
Stephen Kós J
Solicitor:
Crown Solicitor, Wellington
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