R v Saggers
[2013] NZHC 1169
•21 May 2013
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2008-090-4576 [2013] NZHC 1169
THE QUEEN
v
DAVID GEORGE SAGGERS
Hearing: 20 May 2013
Counsel: Mr K Glubb for Crown
Mr R M Mansfield for Accused
Judgment: 21 May 2013 at 9.30 am
ORAL JUDGMENT OF WHITE J (DISPUTED FACTS HEARING)
Solicitors:
Crown Solicitor, Meredith Connell, PO Box 2213, Auckland [email protected]
Mr R M Mansfield, PO Box 2674, Auckland [email protected]
R v SAGGERS HC AK CRI-2008-090-4576 [21 May 2013]
Introduction
[1] On 24 March 2010 I sentenced Mr Saggers to 12 years’ imprisonment with a minimum non-parole period of six years on the lead offence of manufacturing methamphetamine with concurrent sentences for ten other offences.
[2] The sentence was imposed after Mr Saggers pleaded guilty to eleven charges, namely:
(a) two charges of possessing materials for the manufacture of methamphetamine;
(b)one charge of possessing equipment for the purpose of manufacturing methamphetamine;
(c) two charges of possessing precursors for the purpose of manufacturing methamphetamine;
(d) one charge of possessing a pistol;
(e) one charge of possessing a restricted weapon; (f) two charges of possessing explosives;
(g)one representative charge of manufacturing methamphetamine between 31 May 2003 and 5 December 2007.
(h)one representative charge of supplying methamphetamine to another between the 31 May 2003 and 5 December 2007; and
[3] Mr Saggers pleaded guilty to charges (a)–(f) prior to the start of his trial on
15 February 2010 and, on the fourth day of his trial, pleaded guilty to the two representative charges in (g) and (h).
[4] On receipt of the sentencing submissions for the Crown and Mr Saggers, it appeared that Mr Saggers was taking issue with the Crown’s description of the “aggravating features” relating to the scale of his operations and the period of offending, the presence of ammunition and weapons and harm to a visiting child.
[5] As required by s 24(2) of the Sentencing Act 2002, I therefore issued a minute dated 23 March 2010 indicating to the parties the weight that would be likely to be attached to the disputed facts if they were found to exist and their significance to the sentence.
[6] In the minute I stated:
[6] I indicate that I would give considerable weight to the following disputed facts which would be of particular significance to the sentence in this case in putting the case well within Band 3 in R v Fatu [2006] 2 NZLR
72 (CA) –
(a) The ContacNT found at the accused’s house could have
yielded between 100 and 300 grams of methamphetamine.
(b) The equipment, the precursors and the $253,720.00 found further supports the conclusion that it was a large scale commercial enterprise.
(c) It was an ongoing concern from 31 May 2003 to 5 December
2007, a period of four years and seven months.
(d) The presence of ammunition and weapons related to the operation.
[7] Subject to any further evidence which the defence may wish to adduce, I would propose to take into account in addition to the evidence adduced at the trial, especially the unchallenged evidence of YY [Mr Saggers’ former partner], the further statements provided by the Crown from Jason Otis and Gregory Holmes.
[8] The parties should advise the Court whether they wish to rely on the disputed facts and whether they wish to adduce further evidence.
[7] Prior to sentencing Mr Saggers on 24 March 2010, his then counsel, Mr EB Leary advised me that he did not seek to adduce further evidence or ask for the Crown witnesses, Mr Otis (an ESR forensic scientist) and Detective Sergeant Holmes (the police expert witness) to be called for cross-examination on their statements.
[8] I subsequently recorded Mr Leary’s advice in my sentencing notes of
24 March 2010 at [12] and said that this meant that I might accept the evidence which I indicated in my minute established the disputed facts for the purpose of Band 3 in R v Fatu.
[9] After I had sentenced Mr Saggers, he appealed to the Court of Appeal against his sentence. In a judgment delivered on 18 December 2012 his appeal was allowed on the ground that Mr Leary had failed to advise Mr Saggers of his ability to dispute the facts by giving and calling evidence at a disputed facts hearing under s 24(2)(b) of the Sentencing Act.1 The Court of Appeal quashed the sentences I had imposed and remitted the case to the High Court with the direction that it determine the disputed facts relevant to sentence, and then resentence the appellant.
[10] Yesterday I conducted the disputed facts hearing in accordance with the direction of the Court of Appeal. This is my judgment in respect of that hearing.
Section 24
[11] At the outset I record that for sentencing purposes a disputed facts hearing is to be conducted and determined in accordance with s 24 which 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:
1 Saggers v R [2012] NZCA 591 at [24]–[25].
(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
mitigating fact means any fact that—
(a) the offender asserts as a fact that justifies a lesser 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
[12] As pointed out in Adams on Criminal Law – Sentencing,2 s 24 restates and clarifies the law relating to the facts on which an offender is to be sentenced. The statutory framework identifies four streams from which facts relevant to sentencing are drawn:
(a) facts disclosed by evidence at the hearing or trial (subs (1)(a));
(b) facts agreed on by both the prosecutor and the offender (subs (1)(a));
2 Bruce Roberston (ed) Adams on Criminal Law – Sentencing (online looseleaf ed, Brokers) at
[SA 24.02].
(c) facts that are essential to a guilty plea or finding (subs (1)(b)); and
(d)disputed facts that relevant to the sentencing process if proved to the required standard (subs (2)).
[13] Where there is a guilty plea or a guilty verdict following a defended hearing or trial, the Judge must accept as proved those facts, express or implied, in category (c). But in relation to facts in category (a), (b) and (d) where more than one factual conclusion is available, it is the Judge’s responsibility to set out what he or she finds to be established.
[14] Where the Crown or the defendant wishes to rely upon a factual matter relevant to sentencing that is disputed by the other party, and is not content to have the dispute determined informally, the procedure set out in s 24(2) is to be followed. This was described in R v Haarhaus:3
(a) The Court must first indicate to the parties the weight it would be likely to attach to the disputed fact and its significance to the sentence.
(b)If in light of that indication the prosecutor wishes to rely on a disputed aggravating fact or negate a disputed mitigating fact other than one that is related to the nature of the offence or the offender’s part in the offence, the prosecutor bears the onus of proof in relation to that fact: s 24(2)(c).
(c) If in light of the indication the defendant wishes to rely on a disputed mitigating fact that is relevant to the nature of the offence or the offender’s part in the offence, the defendant bears the onus of proof in relation to that fact: s 24(2)(d).
(d)Evidence as to the existence of a disputed fact may be adduced at a hearing: s 24(2)(b).
3 R v Haarhaus HC Auckland CRI-2007-004-18646, 4 June 2009, at [7]–[9].
(e) Either party may cross-examine any witness called at the hearing:
s 24(2)(e).
[15] As s 24 is largely a restatement of the position at common law, the evidence at a disputed facts hearing must be properly adduced and objectionable hearsay may not be relied on: R v Nuku4 and R v Bryant.5
[16] Where the prosecutor asserts a fact relating to the offence or the offender’s part in the offence, that is not encompassed in the guilty plea or finding, and that fact may justify a greater penalty, the prosecutor must prove it beyond reasonable doubt if it is disputed by the offender. There is no evidential onus on the offender.
[17] As to what amounts to facts “relating to the offence or the offender’s part in the offence”, it has been held to include the “street” value of controlled drugs: R v Spain.6 It will also include facts about the nature and severity of the offence.
The disputed facts here
[18] As is apparent from my minute of 23 March 2010,7 the disputed facts here relate to the overall scope and significance of Mr Saggers’ offending for the purpose of determining whether his offending put his case “well within Band 3 in R v Fatu” which refers to manufacturing large commercial quantities of methamphetamine (250 grams to 500 grams). Relevant evidence was given at the trial by Mr Saggers’ former wife and former partner who said that they observed Mr Saggers manufacturing methamphetamine and selling it to third parties for cash in the period between 31 May 2003 and January 2004. The relevant evidence also included the items found by the police at Mr Saggers’ properties on 5 December 2007, including the ContacNT, which could have yielded between 100 and 300 grams of methamphetamine, the equipment, the precursors substances, the $253,720 in cash,
and the ammunition and weapon.
4 R v Nuku [1969] NZLR 343 (CA) at 345.
5 R v Bryant [1980] 1 NZLR 264 (CA) at 270.
6 R v Spain HC Auckland CRI-2004-004-17843, 28 October 2005.
7 Above a [6].
[19] The Crown relies on all of this evidence to support a finding that Mr Saggers was involved in a large scale commercial enterprise manufacturing and supplying methamphetamine over a period of more than four and a half years. The Crown submits that this is established beyond reasonable doubt by the evidence adduced at the trial, particularly the evidence of Mr Saggers’ former wife and former partner, which should not be read down in any way, together with the items discovered on his properties in December 2007 and the unchallenged evidence of Jason Otis and Detective Sergeant Gregory Holmes. Relying on s 24(1)(a) and (b), the Crown has not sought to call any further evidence to establish the disputed aggravating facts. In particular, the Crown has decided not to recall Mr Saggers’ former wife and former partner for cross-examination on the disputed facts. Finally, the Crown relies on the cross-examination of Mr Saggers and his witnesses yesterday.
[20] Mr Saggers disputes any involvement in manufacturing methamphetamine beyond evaporating the drug in liquid form to obtain one or two grams in crystalline form. He claims not to know how to complete the full process for the manufacture of methamphetamine. Mr Saggers now admits, however, providing evaporated methamphetamine to three or four people per week over a period of some three years (May 2003–January 2005 and mid 2006–December 2007), but not for profit.
[21] For Mr Saggers, Mr Mansfield submits that the Crown has failed to establish the disputed aggravating facts beyond reasonable doubt because:
(a) I should give little weight to the trial evidence of Mr Saggers’ former wife and former partner who were not cross-examined at the trial on their evidence relating to the facts disputed for the purposes of sentencing; and
(b)I should give greater weight to the evidence of Mr Saggers and his witnesses who gave evidence yesterday.
[22] Mr Mansfield also submits that the Crown was required by s 22(2)(c) to recall Mr Saggers’ former wife and former partner for cross-examination if the Crown wished to rely on their evidence in respect of the disputed facts. He pointed
out that Mr Leary had accepted that he (Mr Leary) had not advised Mr Saggers prior to trial that a disputed facts hearing was an option open to him. This meant that when Mr Saggers pleaded not guilty to the two representative charges Mr Leary was not able to cross-examine Mr Saggers’ former wife and former partner in respect of the disputed facts.
[23] In these circumstances I approach the issues raised by Mr Mansfield as follows:
(a) There is no mandatory requirement under s 24 for the Crown to recall witnesses who gave evidence at the trial. The Court of Appeal did not suggest there was any such obligation on the Crown in this case. On the contrary, the Court pointed out that Mr Saggers would have difficulty in inviting the Court to prefer his evidence over that of his former wife and his former partner.8
(b) The Crown is entitled to rely on the Court accepting facts as proved in terms of s 24(1)(a) and (b).
(c) The Crown may also endeavour to persuade the Court that sufficient evidence was adduced at the trial to establish a disputed fact: s 24(1)(a).
(d)The Crown may also rely on the cross-examination of any witnesses called by the defence: s 24(2)(e).
(e) At the end of the day it will be for the Court to determine whether the Crown has established the disputed aggravating facts beyond reasonable doubt, taking into account any facts accepted under s 24(1) and the weight to be given to other evidence at the trial and at the disputed facts hearing. In approaching the question of the weight to
be given to the trial evidence of Mr Saggers’ former wife and former
8 Saggers v R, above n 1, at [35].
partner, I take into account the cross-examination constraints on
Mr Leary as a result of the not guilty pleas.
[24] As required by s 24(1), I therefore propose to consider first the facts that I accept as proved before turning to the other relevant evidence at the trial and the evidence I heard yesterday.
Facts essential to pleas of guilty
[25] The starting point is to identify all the facts, express or implied, that are essential to Mr Saggers’ pleas of guilty, as I am required by s 24(1)(b) to accept them as proved.
[26] On the basis of Mr Saggers’ pleas of guilty to the eleven charges, I must accept that the acts encompassed by all of those charges, together with the requisite guilty mind, are proved in each case.
[27] In particular, this means that the following facts have been proved:
(a) Mr Saggers manufactured methamphetamine between 31 May 2003 and 5 December 2007;
(b)Mr Saggers supplied methamphetamine to another person during the same period; and
(c) Mr Saggers had in his possession all of the items the subject of the other charges on 5 December 2007.
[28] As the manufacturing and supplying charges were representative charges, I must also accept as proved the fact that Mr Saggers committed these offences at some stage over the period of more than four and a half years.
[29] When the guilty pleas to these two representative charges are taken together, as they must be, I must accept that during that period Mr Saggers was in fact
manufacturing methamphetamine for the purpose of supply to other persons. Taking into account the period involved and the items discovered on the searches of his property, especially the 1.1 kg of ContacNT, the money and the weapon and the ammunition, the guilty pleas prove that the overall scope of his offending was at least potentially significant.9
Facts proved at trial
[30] For the purpose of s 24(1)(a), I have re-read the evidence adduced at the trial of Mr Saggers on 15–17 February 2010. I have already noted the evidence of his former wife and his former partner relating to the nature and extent of his involvement in the manufacture and supply of methamphetamine and the items discovered on his properties in December 2007, including in particular the ContacNT which could have yielded between 100 and 300 grams of methamphetamine and the cash of $253,720.
[31] I have noted that his former wife was cross-examined on her evidence, while his former partner was not. I have recalled that I found the evidence of both of them to be compelling and convincing, but at the same time I accept that Mr Leary’s cross-examination was constrained by the not guilty pleas and that their evidence might have been affected if they had been cross-examined on the aggravating facts now in dispute.
[32] The cross-examination of Mr Saggers’ former wife did not affect her credibility or the strength of her evidence, but she was not cross-examined in any detail on the aggravating facts that are now in dispute. The evidence of his former partner was not challenged at all.
[33] The fact that Mr Saggers’ former wife and former partner had only met each other on one occasion and did not really know one another meant not only that was
there no suggestion of collusion between them but also supports the Crown
9 Andrews v R [2012] NZSC 41.
submission that Mr Saggers was conducting a large scale commercial operation manufacturing and supplying methamphetamine to others for cash.
[34] This view is reinforced by the items found by the police when search warrants were executed on Mr Saggers’ home and commercial premises: see my sentencing notes at [5] and [7].
[35] I note in passing that this view in respect of the effect of the evidence of Mr Saggers’ former wife and partner is consistent with my view at the time (see my sentencing notes at [13]) and was shared by Mr Leary in his evidence to the Court of Appeal in Mr Saggers’ appeal.10
[36] But, accepting Mr Mansfield’s submission that the weight to be given to the evidence of Mr Saggers’ former wife and former partner should await my assessment of the evidence called for Mr Saggers, I turn to consider the evidence that I heard yesterday.
The evidence yesterday
[37] The evidence-in-chief of the witnesses for Mr Saggers at the hearing yesterday comprised the affidavits filed in support of his appeal to the Court of Appeal by:
(a) Mr Saggers himself; (b) Dale Hunter, manager;
(c) Grant Sowman, sentenced prisoner on parole; (d) Vanessa Laird, printer;
(e) Sylvia Clarke, his mother;
10 Saggers v R CA 443/2010, Notes of evidence taken before Wild, Chisholm and Courtney JJ
on 19 November 2012, at 7 and 12.
(f) Raewyn Saggers, his sister; and
(g) Jennifer Bennett, peer support worker;
[38] I read all of these affidavits prior to the hearing yesterday.
[39] In general terms the purpose of this evidence was to persuade me that Mr Saggers’ involvement in manufacturing methamphetamine was to evaporate for his personal use methamphetamine which had been given to him by Mr Sowman and a Mr Kareus before 2003 and January 2004 and that there were innocent explanations for the $253,720 in cash found on his premises.
Mr Saggers
[40] In particular, Mr Saggers gave detailed evidence in his affidavit suggesting that he was only occasionally involved in the final process of manufacturing methamphetamine for personal use. He said he was given left over methamphetamine in liquid form by friends and that all he did was to evaporate it and that he purchased small amounts of crystal methamphetamine from his friends and others for his own use. He admitted using methamphetamine with his former partner two or three times a week between November and December 2003. He also admitted sharing methamphetamine with his former wife. He said that he used to use about three to four grams of methamphetamine per month until February 2005 and that he stopped using it until the middle of 2006 when he started again to smoke it and snort it in its pure form. He admitted becoming addicted on a much more serious scale than before and starting to inject methamphetamine in 2007.
[41] He admitted that between August 2006 and December 2007 he purchased ContacNT about six times and claimed to on-sell the precursor substance on each occasion at a profit for cash totalling some $ 88,000. He claimed never to have taken part in the manufacturing of methamphetamine.
[42] He also claimed that he derived no significant profits from his low-level involvement in the manufacture and supply of methamphetamine. He claimed that
during the relevant period he earned money through lawful means particularly through his two business of drain laying and organising dance parties. He also claimed to have sold cars on behalf of other persons and that all of these businesses were cash businesses. He gave detailed evidence about the cash payments he claimed to have received from these activities. He also referred to cash loans from third parties totalling several $100,000 dollars and other cash he claimed to be holding for Ms Bennett.
[43] Under cross-examination by Mr Glubb, Mr Saggers maintained his claim that the evidence of his former wife and former partner was incorrect in respect of the nature and scope of his manufacturing and supplying activities. He admitted supplying them and friends with evaporated methamphetamine, but disputed knowing how to carry out the complete process and selling methamphetamine to anyone. At the same time Mr Saggers admitted a personal addiction to methamphetamine and a series of occasions between 2004 and 2007 when he was arrested by the police in respect of drug related activities. He also admitted having serious financial difficulties with his business in liquidation, the need to obtain expensive legal advice and loans and to meet his living expenses. Mr Saggers maintained that the $253,000 cash found on his property was money that he had received from the sale of vehicles and loans from Mr Williams to settle his relationship property dispute and a Ms Bennett to purchase dance equipment.
[44] Mr Saggers admitted under cross-examination that there was surveillance equipment on his property at least after 2006, but claimed that its purpose was as a deterrent intended to protect the valuable equipment in his shed.
[45] In response to my questions, Mr Saggers admitted that he knew in the period between August 2006 and May 2007 that if the ContacNT had been used for the manufacture of methamphetamine the profit from the sale of the methamphetamine would have been substantially greater than the sale of the ContacNT itself. He also admitted that in the period May 2003 to January 2005 he had supplied other persons with methamphetamine on a weekly basis. He claimed, however, that the supply was not for profit.
[46] Having read Mr Saggers’ affidavit and having heard his evidence yesterday, I am satisfied beyond reasonable doubt that his involvement in the manufacture and supply of methamphetamine was not as limited as he claimed. The following evidence was inconsistent with and undermined his claim:
(a) His possession of all the items found by the police in December 2007, including in particular the precursor substances, the 1.1 kg of ContacNT, the significant amount of cash, the weapon and ammunition.
(b) The surveillance equipment at his property, at least since 2006.
(c) His admission of possession of significant quantities of ContacNT in the period August 2006–December 2007 with knowledge that sale of the finished product would be substantially more profitable.
(d)His admission that he regularly supplied methamphetamine to other persons in the periods May 2003 to January 2005 and mid 2006 to December 2007.
[47] This evidence indicates that Mr Saggers was involved in a significant methamphetamine manufacturing and supply enterprise. Against this evidence I found Mr Saggers’ denials unconvincing.
[48] The discovery by the police of cash of $253,000 on Mr Saggers’ property in December 2007 is entirely consistent with his operating a significant commercial enterprise in supplying methamphetamine. When the cost of the precursor substances and the financial returns are taken into account, I do not accept that Mr Saggers, who was clearly facing financial difficulties at the time, would not have sold for profit the methamphetamine that he admitted supplying to other persons on a regular basis in the periods referred to.
[49] I found Mr Saggers’ explanation for the cash found on his property (under his mattress, in his bedroom, in a back pack and a van) to be unconvincing and far-
fetched. I do not accept that he had received the loans he suggested or that he would have kept such a significant amount of money in cash on his property if it had not been the proceeds of his unlawful methamphetamine enterprise. Apart from the evidence of his other witnesses to which I shall refer in a moment, there was no evidence from Mr Williams of his alleged loan, notwithstanding an opportunity to obtain such evidence before his death. I found the evidence relating to the alleged loan from Mr Williams, himself a convicted drug dealer, to be unbelievable. The suggestion that he lent Mr Saggers $130, 140 or 150,000 cash from his fortuitous casino winnings was simply not credible.
Ms Hunter
[50] Ms Dale Hunter, the mother of Mr Saggers’ son, gave evidence that Mr Saggers’ former partner had told her that Mr Saggers was not involved in making methamphetamine. In view of Mr Saggers’ guilty pleas and admissions to which I have referred I did not find the evidence of Ms Hunter to be of assistance.
Mr Sowman
[51] Mr Ian Sowman deposed that on 28 February 2006 he was sentenced to nine years’ imprisonment with a minimum period of imprisonment of half of that term having been convicted of manufacturing methamphetamine, possession of precursor substances, possessing a pistol and possessing explosives. He said that he had known Mr Saggers since about 2002 and that he had paid him cash of between
$10,000 and $12,000 for some excavation and landfill work carried out on a property on Great Barrier Island.
[52] Mr Sowman admitted smoking methamphetamine with Mr Saggers on a regular basis and that he sometimes gave small amounts of his un-evaporated preparations to Mr Saggers. He deposed that Mr Saggers never gave or sold methamphetamine to him. He was critical of the trial evidence of Mr Saggers’ former wife and former partner. Finally, he purported to give hearsay evidence about the alleged loan from Mr Williams of $150,000.
[53] In view of Mr Saggers’ guilty pleas and admissions I did not find Mr Sowman’s evidence to be of assistance. I also found his evidence about the loan to lack credibility, particularly in light of his background and its hearsay nature.
Ms Laird
[54] Ms Vanessa Laird deposed that she first met Mr Saggers in October 2003 when he was working as a DJ. She referred to Mr Saggers’ dance party business which she was involved in and the receipt of cash from ticket sales. She also purported to give hearsay evidence about the loan from Mr Williams to Mr Saggers which she said was about $130,000.
[55] Under cross-examination, Ms Laird conceded that she had not seen any evidence of the loan and she told me that Mr Williams had not told her when he made the loan or when he had won his casino winnings alleged to have been used for the loan. Nor did Ms Laird know how long Mr Williams had been in prison and when he was released before she saw him.
[56] I did not find Ms Laird’s evidence to be of any assistance.
Ms Clarke
[57] The evidence of Ms Clarke, Mr Saggers’ mother, was critical of her daughter-in-law. She also gave evidence that she stayed at Mr Saggers’ house “on and off” between November 2003 and 2004 and did not observe anyone manufacturing methamphetamine.
[58] Under cross-examination, Ms Clarke conceded that she may have stayed for three or four days for two weeks in November 2003 and January 2004. She acknowledged that there was a surveillance camera on the property at that time.
[59] In view of Mr Saggers’ guilty pleas and admissions, I did not find
Ms Clarke’s evidence to be of assistance.
Ms Saggers
[60] The evidence of Ms Saggers, Mr Saggers’ sister, was critical of the evidence given at the trial by his former partner and former wife. She also deposed that she did not observe any evidence of the manufacture of drugs when she visited Mr Saggers.
[61] In view of Mr Saggers’ guilty pleas and admissions, I did not find
Ms Saggers’ evidence to be of any assistance.
Ms Bennett
[62] Ms Bennett deposed that she was a user of drugs, including methamphetamine, in the period 1998–2008 and that between 2006 and 2007 when she was “engaged to provide services as a hostess to a member of a Saudi Royal family living in Cairo” she was paid in cash (NZD 10,000 on seven occasions), as she was when she continued as a sex-worker back in New Zealand. She then deposed that she used to give her cash to Mr Saggers to look after. She referred in particular to payments totalling over $80,000 in cash between February and November 2007.
[63] She also deposed that when she was in New Zealand she and Mr Saggers were frequent visitors to each other’s houses and that during all of her visits to his house she never saw or smelled methamphetamine being manufactured. She admitted that she had sometimes seen Mr Saggers with small amounts of methamphetamine (one or two grams) which he had for personal use. She also purported to give evidence about Mr Saggers storing drug equipment for a friend and picking up a loan from Mr Williams of $140,000 in cash in late 2007 shortly before Mr Saggers was arrested.
[64] Under cross-examination, Ms Bennett said she gave Mr Saggers for safe keeping substantial sums of cash which she had received from Western Union for her overseas services and that after repayments to her Mr Saggers had $55,000 left in
his safe. She also conceded that she did not see the alleged cash making up the loan from Mr Williams or the drug equipment that Mr Saggers was alleged to have stored.
[65] In response to questions from me, I was left with the impression that Ms Bennett thought that by giving evidence in Court in support of Mr Saggers she might recover some of her money. Her evidence seemed to be based largely on what she had heard from Mr Saggers.
[66] I did not find Ms Bennett a credible or reliable witness. For this reason and also in view of Mr Saggers’ guilty pleas and admissions, I did not find Ms Bennett’s evidence to be of any assistance.
Summary
[67] Having considered all of the evidence adduced for Mr Saggers, I am satisfied that the prosecution has proved the existence of the disputed aggravating facts beyond reasonable doubt. I have reached this conclusion because:
(a) I put aside evidence inconsistent with the facts, express and implied, that I accept are essential to Mr Saggers’ guilty pleas. Evidence suggesting that he was not involved in the manufacture and supply of methamphetamine in the period 31 May 2003–5 December 2007 falls into this category.
(b)I put aside evidence inconsistent with the facts that I accept were proved by evidence at the trial prior to the entry of his guilty pleas on the two representative charges. Evidence suggesting that Mr Saggers was involved only in the manufacture of methamphetamine at a low level and for his personal use falls into this category. Such evidence is inconsistent with the range of items found by the police when Mr Saggers’ properties were searched in December 2007 which clearly suggested that Mr Saggers was involved in a major operation. The manufacturing equipment, the precursor substances, especially the ContacNT, the significant amount of cash, the weapon and
ammunition and surveillance equipment that were found cannot be explained away on the basis that it was a low level operation for Mr Saggers’ personal use.
(c) While I am prepared to accept Mr Mansfield’s submission that the trial evidence of Mr Saggers’ former wife and former partner should be approached with caution because they were not cross-examined on the disputed aggravating facts, I consider that Mr Saggers’s own admissions when taken with his guilty pleas and the other evidence at the trial is more than sufficient to establish that he was involved in a substantial commercial operation.
(d) I have given little, if any, weight to the other evidence of Mr Saggers and his witnesses not only because it was inconsistent with his guilty pleas, his admissions and the evidence I have accepted but also because it appeared to me to be a desperate and unsuccessful attempt to explain away his possession of substantial quantities of the precursor substance, ContacNT, and the large amount of cash found on his properties. I found the explanations given by Mr Saggers and his witnesses, especially in relation to the alleged loans, to be implausible and unconvincing. I did not believe them.
(e) The evidence of a number of the witnesses called for Mr Saggers was, as I have noted, not of any assistance on the relevant issues.
(f) On the basis of all the evidence I have read and heard, I am satisfied beyond reasonable doubt that the only sensible explanation for Mr Saggers’ admitted activities and the possession of the equipment, precursor substances and cash was the manufacture and supply of methamphetamine on a commercial scale extending over the period the subject of the two representative charges, particularly the periods May 2003–January 2005 and mid 2006–December 2007.
[68] For these reasons I therefore propose to proceed to sentence Mr Saggers today on a basis similar to that I adopted on 24 March 2010.
[69] In giving Mr Saggers notice that I intend to proceed on that basis, I also mention, as the Court of Appeal recognised I might,11 that it is open to me now to review the 15 per cent allowance for guilty pleas, including remorse, and for co- operation with the police, that I gave Mr Saggers originally. Where facts disputed by a defendant are subsequently established to the required standard, there may be
grounds for a significant reduction in the discount.12
DJ White J
11 Saggers v R, above n 1, at [34].
12 Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 at [61]; Curtis v Police (1993) 10 CRNZ 28 (HC) at 34; and R v Underwood [2004] EWCA Crim 2256 at [11].
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