R v Sowman

[2007] NZCA 309

IN THE COURT OF APPEAL OF NEW ZEALAND

CA110/06

CA238/07 [2007] NZCA 309

THE QUEEN

v

GRANT IAN SOWMAN

Hearing:         18 June 2007

Court:            Hammond, Williams and Panckhurst JJ Counsel:      G C Gotlieb for Appellant

K Raftery for Crown

Judgment:      24 July 2007         at 11 am

JUDGMENT OF THE COURT

A.       The appeal against conviction is dismissed.

B.       The appeal against sentence is dismissed.

REASONS OF THE COURT

(Given by Williams J)

R V SOWMAN CA CA110/06  24 July 2007

Issue

[1]      By the  end  of a  jury trial  in  the  High  Court  in  September  2005  –  the indictment having been amended during trial because of pleas by a co-accused – the appellant faced seven counts under the Misuse of Drugs Act 1975.  He was charged with manufacturing methamphetamine between 1 – 21 September 2004 at Albany, near   Auckland.      He   was   also   charged   with   six   counts   of   possessing methamphetamine for supply and possessing equipment, precursors and material for the manufacture of methamphetamine, all on 21 September 2004.   He was further charged  under  the  Arms  Act  1983  with  unlawful  possession  of  a  pistol  and explosives.   The jury found him guilty on all counts other than possession of methamphetamine for supply.

[2]      He has appealed to this Court against his convictions on the sole ground that the trial Judge, Simon France J, should have left the defence of compulsion under s 24 of the Crimes Act 1961 to the jury.

[3]      After  delays  caused  by  a  change  of  counsel,  on  28  February  2006  the appellant was sentenced to nine years’ imprisonment on the manufacturing charge, with a minimum period of imprisonment of 50 percent of that term plus concurrent sentences  of three  and  a  half  years’  imprisonment  on the  counts of  possessing precursor materials and chemicals and 12 months’ imprisonment on the Arms Act charges.

[4]      The  appeal  against  sentence  to  this  Court  rests  on  the  ground  that  the sentence imposed on the manufacturing charge was manifestly excessive.

Facts

[5]      From the prosecution’s point  of view,  Mr  Sowman’s  trial was  relatively straightforward.

[6]      On 20 September 2004 police officers followed a co-accused from Taranaki to Auckland and observed him purchasing a 50 kilogram keg of hypophosphorous

acid, a methamphetamine precursor, on the way.  He drove to the appellant’s Albany address.

[7]      A  search  warrant   was   executed   at   the   appellant’s   rural  address   on

21 September 2004 at about 6:30 pm.  The appellant and his partner were present. Methamphetamine was discovered in various containers throughout the house and surrounding property.   During the search a further person, who also became a co- accused, arrived at the property.   When searched he was found in possession of a significant amount of pseudoephedrine.  A pistol and 13 rounds of ammunition were found in a bag in flax bushes near the kitchen.

[8]      In  his  evidence  Mr  Sowman  denied  manufacturing  methamphetamine, knowing how to manufacture methamphetamine, accumulating glassware or buying precursor chemicals, though he admitted to being a user of methamphetamine from before 2002.  He began smoking it and moved to intravenous injection.  He admitted ownership of some of the equipment found in the house with traces of methamphetamine on it, but denied being  involved  in leaving those traces or in manufacturing the drug.  He said some of the items were brought to the property on

21 September 2004 by a Mr Sparkes and other visitors.  He asserted the precursor chemicals were for innocent domestic use.  He said he had never seen the pistol and ammunition before they were found by police, suggesting perhaps Mr Sparkes hid them.

[9]      He  said  he  first  met  Mr  Sparkes  on  17  October  2003,  which  was Mr Sowman’s birthday. The appellant had bought six grams of methamphetamine on credit through an associate but, instead of selling it as intended, consumed it all with his partner.  He was thus unable to pay for it.

[10]    Six weeks passed, during which he received threatening telephone calls concerning payment.  Some six or seven weeks after first meeting Mr Sparkes, two men came to his door one evening to collect the money.  He said he was unable to pay.  “Jimmy” punched him in the head and “threatened to do me in”.  He paid the money, $3000, about six weeks before execution of the search warrant but was told the payment only met interest.   He said “they were going to smash me over real

bad”.  He avoided that by agreeing to their leaving “some stuff on my property and if [they] could do that for a while that would pay off my debt”.  He said they used his property on occasions thereafter, sometimes when he was absent.   When he was there he saw them unloading containers but was told to go inside.  He said over time he came to  believe  they were  manufacturing  methamphetamine  at  his  property. When he again told them he had paid the debt they denied this and said “if I made any trouble for them they would get me” and possibly his daughter who lived on Great Barrier Island.   He said he was therefore providing his property “against [his] will”.

[11]     He also said that, about five weeks after execution of the search warrant, he was awakened by being punched in the head by “Jimmy”, taken outside to a car, directed into the boot, driven to a seaside location, pulled out and told that “they were going to use my place again and that if I tried to stop them or get in touch with the Police they would get me one way or another”.  He said he was so terrified by what they told him that he urinated over himself.   He said they began using his property about a week later in the same way as previously.  It seems his timing of the latter incidents may have been erroneous since, later in his evidence, he also said those visits occurred before execution of the search warrant.

[12]     He said Mr Sparkes arrived at the property on 21 September and told the appellant to go up to his bedroom.  He later said he was leaving but the appellant was to remain in his bedroom and “he told me if I moved he would bash me over”.

[13]     Unusually  by  comparison  with  trials  where  such  assertions  are  made, Mr Sparkes gave evidence for the defence.  (At the conclusion of the trial, the Judge approved the release of the notes of evidence to the police, but as the Judge noted when sentencing the appellant, Mr Sparkes then retracted his evidence and claimed it was given under compulsion.)

[14]     Mr Sparkes said he first met the appellant in about 2003 when he drove an associate to Mr Sowman’s house to collect the drug debt.  He said his “mate went in, [gave] him a smack on the head”.   Mr Sowman was then put in the boot, driven

around for a period and “given a hiding, then taken back home where he paid the money”.

[15]     Mr Sparkes said he and the other man then used the appellant’s property for manufacturing methamphetamine.  They were allowed to use the property as “part of the terms and conditions of his debt”.  Mr Sowman was usually absent, but when he was there he helped by opening pill containers or mixing bottles “when he was told to, even though he wasn’t willing but he did it anyway”.   In cross-examination he said the appellant would assist in the manufacturing process by doing whatever he was told “because he had to”.  Mr Sparkes said he brought equipment and chemicals to the appellant’s address and manufactured methamphetamine earlier in the day on

21 September, leaving shortly before police arrived.

[16]     On 26 September 2005, at the conclusion of the evidence but before closing addresses, the Judge raised with counsel whether the defence of compulsion might be open.   He told them that he thought the state of the evidence might justify his leaving the defence to the jury.  However, after consideration, he changed his view. In reasons delivered on 27 September 2005, he recorded neither counsel disagreeing with his initial view, but trial counsel reiterating his instructions from the appellant that he had no involvement in the manufacture.   His participation was limited to making his premises available under compulsion and Mr Sowman was not charged under s 12 of the Misuse of Drugs Act with the offence of permitting premises to be used for the purposes of an offence under the Act.

[17]     Final addresses and the summing-up proceeded on the basis of the Crown asserting it had proved to the required standard that the appellant had been involved in all the charges brought against him.   The defence contended Mr Sowman was compelled to make his property available, but denied he was involved in manufacturing methamphetamine or possessing the equipment, precursors and other material.

[18]     However, during retirement, the jury asked a question in relation to counts

1 and 3– (manufacturing methamphetamine in the three weeks prior to 21 September

2004 and possession of equipment on the latter date): “If someone is under duress

does that remove culpability for involvement?”  The Judge directed them that in the circumstances of the appellant’s case duress did not affect culpability.

Evidence on appeal

[19]     In an affidavit admitted without objection on appeal, Mr Sowman essentially repeated his trial evidence as to the nature and timing of the threats made to him, including that the beach incident occurred several weeks after the execution of the warrant and that manufacturing continued at his property after that date.

[20]     Mr  Sowman said  he told  trial counsel,  not  Mr  Gotlieb,  on a number  of occasions that he “acted under duress or compulsion and because of fear for my life and my daughter’s life” thinking that was the defence which would be run at trial. He said he was unable to understand why the jury was told not to consider compulsion.  The jury’s question showed it was concerned about the issue and the Judge was wrong to answer as he did.

[21]     He also said he was not present when the Judge discussed the question of compulsion with counsel but, after  discussions  between present  counsel and the Crown, he modified that stance to say he had no recollection of being present at that juncture.

[22]     In his affidavit, trial counsel largely agreed with Mr Sowman’s description of his  instructions  but  said  the  appellant  and  he  never  discussed  compulsion  as  a defence.  That was because of the appellant’s stance that he was not involved in the manufacturing  or  any  of  the  other  offending.     His  only  involvement  was  in permitting his premises to be used.  That only occurred out of fear of violence and he was facing no charge relating to use of his property.  There being no concession by the appellant of any involvement in manufacturing or other offending, it was trial counsel’s understanding that compulsion was not available.   Even when the Judge raised the issue, counsel did not see compulsion as being open given the obvious contradiction between a compulsion defence and the appellant’s evidence of denial.

[23]     As mentioned, the Judge decided, after hearing from counsel, not to put a compulsion defence to the jury and gave his reasons for adopting that course the following day.   After summarising the evidence, counsel’s instructions, his ruling and his response to the jury question, the Judge’s reasons included:

(a)      “Lack of definition of what conduct, and therefore what offending, was said to be the subject of duress” given the evidential conflict between Messrs Sowman and Sparkes.  Compulsion could not apply to the counts of possession of various  items  in periods when  the appellant  was present  at the property alone  because  presence  and immediacy of the suggested threats was lacking.  Nor, depending on the jury’s view of the facts, could compulsion apply when Mr Sparkes was present manufacturing if the jury did not accept his description of the appellant’s actions;

(b)      There was no  evidence of specific threats on the occasion of the disputed facts.  The violence and threats appeared to have occurred up to 10 months in the past and not repeated on each occasion of offending;

(c)      As the law required the threats of violence to be immediate, not only were  past  threats  inapplicable  but  threats  of  future  violence  by Mr Sparkes were insufficient, especially as the principal violence had been effected by “Jimmy” and there was no evidence that he was present on any of the occasions when manufacturing occurred;

(d)      The appellant gave no evidence that he believed the threats would be carried out immediately.  All he testified to was a general feeling of fear stemming from the earlier incidents.   Accordingly he could not say he believed the threats would be immediately carried out.

[24]     For  the  appellant,  Mr  Gotlieb  submitted  there  was  sufficient  credible evidence of compulsion to require the Crown to rebut it and for the defence to be left to the jury: R v Teichelman [1981] 2 NZLR 64 at 66 (CA).

[25]     In this case, Mr Gotlieb said, when the Judge raised the issue of compulsion, trial  counsel  should  have  pressed  for  its  inclusion  in  the  summing-up  as  an alternative, available on the evidence, to the version of events given by Mr Sowman. His failure so to do, Mr Gotlieb submitted, resulted in an unfair trial, particularly when seen in light of the jury’s question.

[26]     Mr Gotlieb submitted the threats made by “Jimmy” were supported by the appellant’s  later  abduction  and  its  effect  on  him.    Though  “Jimmy”  was  never present thereafter, Mr Sparkes’ presence conveyed a repeated threat to the appellant of violence should he fail to co-operate.   That was sufficient for the issue to be left to the jury.

[27]     For the Crown, Mr Raftery emphasised that Mr Sowman was never charged with permitting his premises to be used for offences under the Misuse of Drugs Act. Had such a charge been preferred, Mr Sowman’s evidence might conceivably have justified compulsion being left to the jury but, as matters eventuated, there was no evidence of immediacy of any violence or threat of violence linked to the charges Mr Sowman was facing.  The last threat apparently occurred in early 2004.  Even if the defence were thought not to fail because the person making the threat was not with the appellant throughout the intervening time, compulsion could only have been relevant had the appellant acknowledged participating in manufacturing methamphetamine at his property.

Discussion

[28]     The elements of the defence of compulsion (in trials of charges where it is available under s 24(2)) are as appear in s 24(1) of the Crimes Act which reads:

24   Compulsion

(1) Subject  to the provisions  of this  section,  a  person  who  commits  an offence under compulsion by threats of immediate death or grievous bodily harm  from  a  person  who  is  present  when  the  offence  is  committed  is protected from criminal responsibility if he believes that the threats will be carried out and if he is not a party to any association or conspiracy whereby he is subject to compulsion.

[29]     Compulsion (or duress as it is called in some jurisdictions)  is an ancient common law concept discussed as early as in Hales Pleas of the Crown (Vol 1 1736) at 49 and Blackstone’s Commentaries on the Law of England (Vol 4 1783) at 27, cited in Yeo Compulsion in the Criminal Law (1992) at 35 – 36).  It is also a concept the true bounds of which have varied over the years and still vary between common law jurisdictions.  As Yeo’s discussion makes clear, a long-standing disagreement, particularly in the United Kingdom, has been as to whether compulsion is a justification exonerating the actor from criminal responsibility or a total defence against acknowledged criminal conduct.   That dispute has only recently been authoritatively settled by the judgment of Lord Bingham of Cornhill in R v Z [2005]

2 AC 467 (HL) where the following appears at [18]:

Where duress is established, it does not ordinarily operate to negative any legal ingredient of the crime which the defendant has committed. Nor is it now regarded as justifying the conduct of the defendant, as has in the past been  suggested:  Attorney-General  v  Whelan  [1934] IR 518, 526 and Glanville Williams, Criminal Law, The General Part, 2nd ed (1961), p 755. Duress is now properly to be regarded as a defence which, if established, excuses what would otherwise be criminal conduct: Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653, 671, 680, 710-

711 and R v Hibbert (1995) 99 CCC (3d) 193, 204, 213-214 and 219, paras

21, 38 and 47, per Lamer CJC.

[30]     Fortunately, that debate is avoided in New Zealand by the use in s 24(1) of the phrase “protected from criminal responsibility” as opposed to “justified” as that word is defined in s 2.

[31]     The principal New Zealand authority on the defence of compulsion is the decision of this Court in Teichelman.  There the appellant claimed he sold drugs to an undercover constable on four occasions under duress from another man who was present on each occasion and who, he said, threatened him.

[32]     This Court  first  emphasised  how limited  is the  exemption  from criminal responsibility which s 24(1) furnishes.  It said at 66:

While based on common law principles, s 24 clearly and precisely limits the availability of a defence of duress [sic.] to a criminal charge.  The legislation provides a narrow release from criminal responsibility where its strict requirements are met.   It reflects a policy decision that  in those limited circumstances (and where the offence is not in the gravest category excluded from the application of the defence under s 24(2)) a person faced with the threat of immediate death or grievous bodily harm may properly be excused if he chooses the lesser evil of committing the offence.

[33]     This Court  then went  on to  describe the elements of the  defence  in  the following passage at 66 – 67:

First, there must be a threat to kill or cause grievous bodily harm.  Second, it must be to kill or inflict that serious harm immediately following a refusal to commit the offence.   Third, the person making the threat must be present during the commission of the offence.  Fourth, the accused must commit the offence  in  the  belief   that   otherwise  the  threat   will  be  carried  out immediately.   It is that belief in the inevitability of immediate and violent retribution for failure on his part to comply with the threatening demand which provides the justification for exculpation from criminal responsibility. The  subsection  is  directed  essentially  at  what  are  colloquially  called standover situations where the accused fears that instant death or grievous bodily harm will ensue if he does not do what he is told.   It follows from what we have said that before the matter can go to a jury there must be evidence of a continuing threat of immediate death or grievous bodily harm made by a person who is present while the offence is being committed and so is in a position to carry out the threat or have it carried out then and there.

[34]     Certain glosses on the defence have been suggested since Teichelman.  They are helpfully collected by the learned authors of Simester and Brookbanks Principles of Criminal Law (3rd ed 2007) at 364.

[35]     The  first  is  whether  there  must  be  shown  to  have  been  no  reasonable opportunity to avoid the threat.

[36]     In R v Raroa [1987] 2 NZLR 486 at 491 – 492 this Court considered the correctness of a formulation of the elements of compulsion by a High Court Judge who, sitting alone, had convicted the appellant on four counts of being an accessory after the fact of murder and a fifth of getting into a boat unlawfully and without colour of right. The Judge’s formulation of the elements of compulsion had added to the first and second elements from Teichelman that the “threat must be to kill or

inflict  that  harm  immediately  if  the  demand  is  not  met  so  that  there  is  no opportunity of seeking help or protection” and added to the requirement of the threat being immediate that the “ability to carry the threat out is apparent and there is no  chance of escape”.    After  considering authority,  this Court  held  that  it  is  a question of fact in each case whether a threat continues if the circumstances are that there has been an opportunity to seek help or protection or escape and whether the belief held by the accused is genuine.

[37]     Lord Bingham addressed this issue in R v Z.  First (at [27]), he criticised the decision in R v Hudson [1971] 2 QB 202 (CA) as having had the “unfortunate effect of weakening the requirement that execution of the threat must be reasonably believed to be imminent and immediate if it is to support a plea of duress”. He continued at [28]:

It should however be made clear to juries that if the retribution threatened against the defendant or his family or a person for whom he reasonably feels responsible is not such as he reasonably expects to follow immediately or almost immediately on his failure to comply with the threat, there may be little if any room for doubt that he could have taken evasive action, whether by going to the police or in some other way, to avoid committing the crime with which he is charged.

[38]     In combination, Raroa and R v Z would appear to hold, as the learned authors of Simester and Brookbanks say (at 376 – 377), that the opportunity or lack of it available to an accused to escape or seek protection can impact on the immediacy of the threat but are questions of fact for the jury to consider.

[39]     The  second  gloss  on  Teichelman  suggested  in  the  cases  is  whether  the defence extends to a threat of immediate death or grievous bodily harm to a person other than the accused.

[40]     Notably, although Teichelman focuses on threats to an accused – as was the situation in that case – this Court did not necessarily exclude threats to others in the way in which it couched the elements of s 24(1).   Further, the wording of s 24(1) does not in its terms exclude the defence being available to an accused when the threat is to another and, as noted, in R v Z, Lord Bingham extended the defence to an

accused’s family or a “person for whom he reasonably feels responsible”.   The limitation is cogently criticised by Simester and Brookbanks (at 377).

[41]     Although in the appellant’s case he said threats were made concerning the wellbeing of his daughter, whether the defence of compulsion under s 24(1) in New Zealand should extend to persons other than the accused does not need to be decided in the present case since both the appellant and Mr Sparkes concurred that threats were made to and concerning the appellant.

[42]     A question arising out of the final words of s 24(1), which may have been open in the present appeal but was not argued, is whether the availability of compulsion to the appellant may have been precluded by his being “party to any association or conspiracy whereby he is subject to compulsion”.

[43]     In R v Joyce [1968] NZLR 1070 (CA), the appellant claimed he had been threatened with being shot if he refused to participate in a robbery of a service station. Mr Joyce only followed the principal offender slowly into the service station and ran away when he heard a shot fired. In upholding the trial Judge’s decision to withdraw the defence of compulsion from the jury, this Court held (at 1076) that exemption from criminal responsibility arising out of the statutory formula requires proof that:

[T]he very nature of the association was such that the offender, as a reasonable man, should have been able to foresee that the association was of a kind which at least rendered it possible that at a later stage he might be made subject to compulsion.

[44]     It might perhaps have been arguable that the appellant, by obtaining the six grams of methamphetamine on credit  and consuming  it,  made  it  likely that  his association with the drug dealer might expose him to compulsion in the form of threats of death or grievous bodily harm when he was unable to meet the debt.  His association with Mr Sparkes (and with “Jimmy”) might have been thought to lead to the same conclusion.  However, since the issue was not raised before us, we put it to one side.

[45]     Finally,  before turning to matters more precisely germane  to  this appeal, some evidential aspects of the defence of compulsion might be noted.

[46]     First, it is clear, as the Supreme Court of Canada has recently emphasised, that the trial Judge must decide whether there is evidence reasonably capable of supporting all the elements of the defence before it is available (R v Cinous [2002]

2 SCR 3). However, once that test is satisfied, it is for the prosecution to negative the defence beyond reasonable doubt: Salaca  v  R  [1967] NZLR 421 (CA) and Teichelman at 66. This is so despite the fact that as Lord Bingham observed in R v Z at [20]:

[T]he  defence  of  duress  is  peculiarly  difficult  for  the  prosecution  to investigate and disprove beyond reasonable doubt. As Professor Sir John Smith QC observed in his commentary on R v Cole [1994] Crim LR 582,

584, with reference to the Law Commission proposal,

"duress is a unique defence in that it is so much more likely than any other to depend on assertions which are peculiarly difficult for the prosecution to investigate or subsequently to disprove."

The prosecution's difficulty is of course the greater when, as is all too often the case, little detail of the alleged compulsion is vouchsafed by the defence until the trial is under way.

[47]     Whilst that is undoubtedly true, prosecution difficulties are usually eased by the fact that, in most cases, to rely on the defence of compulsion, those accused must give evidence acknowledging their part in the offending but claiming their participation only occurred because of the threats made to them.  That observation is of particular assistance in the present appeal in light of Mr Sowman’s claim of non- participation in any offending with which he was charged.

[48]     The second evidential matter to which we refer relates to the prevalence with which compulsion is raised.  In R v Z, Lord Bingham observed at [22]:

For many years it was possible to regard the defence of duress as something of  an  antiquarian  curiosity,  with  little  practical  application.  Sir  James Stephen, with his immense experience, never knew or heard of the defence being advanced, save in the case of married women, and could find only two reported cases: A History of the Criminal Law of England (1883), vol II, p

106.  Edwards,  drawing  attention  to  the  absence  of  satisfactory  modern

authority,  inferred  that  the  defence  must  be  very  rare:  "Compulsion, Coercion and Criminal Responsibility" (1951) 14 MLR 297. Professor Hart described  duress  as  a  defence  of  which  little is  heard:  Punishment  and

Responsibility (1960), p 16. This has changed. As Dennis correctly observed in "Duress, Murder and Criminal Responsibility" (1980) 96 LQR 208, “In recent  years  duress  has  become  a  popular  plea  in  answer  to  a  criminal charge.”  This is borne out by the steady flow of cases reaching the appellate courts  over  the  past  30  years  or  so,  and  by  the  daily  experience  of prosecutors.

[49]     That led His Lordship – in a passage with which we agree – to observe (at

[22]):

I must acknowledge that the features of duress to which I have referred

… incline me,  where policy choices  are to  be  made,  towards  tightening rather than relaxing the conditions to be met before duress may be successfully relied on. In doing so, I bear in mind in particular two observations of Lord Simon of Glaisdale in Director of Public Prosecutions for Northern Ireland v Lynch [1975] AC 653 (dissenting on the main ruling, which was reversed in R v Howe [1987] AC 417):

“your Lordships should hesitate long lest you may be inscribing a charter for terrorists, gang-leaders and kidnappers” (p 688).

“A sane system of criminal justice does not permit a subject to set up a  countervailing  system  of  sanctions  or  by  terrorism  to  confer criminal immunity on his gang.” (p 696).

In Perka v The Queen [1984] 2 SCR 232, 250, Dickson J held that

“If the defence of necessity is to form a valid and consistent part of our criminal law it  must,  as  has been universally recognised,  be strictly controlled and scrupulously limited to situations that correspond to its underlying rationale.”

I agree. I also agree with the observation of the Supreme Court of Canada in R v Ruzic (2001) 153 CCC (3d) 1, 30, para 59, although in that case the presence and immediacy requirements in section 17 of the Canadian Criminal Code were struck down as unconstitutional:

“Verification of a spurious claim of duress may prove difficult. Hence, courts should be alive to the need to apply reasonable, but strict standards for the application of the defence.”

[50]     Returning to the present appeal and applying that approach, we have noted the contradictions in the evidence called to support the defence of compulsion – particularly that of the appellant – as to when the threats were made.  Even if there were threats to him which occurred after execution of the search warrant as, on one version, he said in evidence and as he repeated in his affidavit, they could have no impact on proof of the necessary threat to cause grievous bodily harm sufficient to

found the defence of compulsion, although they may reflect back on the honesty of his belief that the threats would be carried out.

[51]     However, even adopting the most favourable view on the evidence for the appellant, it is apparent that Simon France J was correct to rule that the defence of compulsion was not available to Mr Sowman.

[52]     On that basis we accept there may have been an evidential foundation for concluding that, before offending occurred as charged, “Jimmy” made a threat or threats to Mr Sowman of at least grievous bodily harm and did so in the presence of Mr Sparkes.   However, there is no evidence that “Jimmy” ever manufactured methamphetamine at the appellant’s property or committed any of the other offences of which Mr Sowman was ultimately convicted.  The person making the threat was therefore not a person who was involved in any way in any of those offences and was accordingly not “present when the offence is committed”.

[53]     Secondly, as a matter of law, the threat to effect grievous bodily harm could not, in all the circumstances of the case, have immediately followed any refusal by Mr  Sowman to  commit  the  offences  of which  he  was  convicted.    There  is  no evidence of him refusing to become involved: he said that, though he may have been suspicious, he did not know of or participate in the offending.

[54]     Next,   all  the   offending   but   the   manufacturing   count   took   place   on

21 September 2004 and the manufacturing count asserted manufacture on that day and during the previous three weeks.  Even on Mr Sowman’s version of events, there is no suggestion that “Jimmy” was at Mr Sowman’s property on 21 September 2004 or the three weeks which preceded it.   Accordingly, again, any threats made to Mr Sowman could not have been to inflict grievous bodily harm on him immediately following refusal to offend.

[55]     There was simply no proof in Mr Sowman’s trial that on each occasion when he committed an offence of which he was ultimately convicted he did so because on each occasion there was a threat of death or grievous bodily harm which caused him to offend  in the way he did  on  that  occasion.    His  denial of any  involvement

whatever in any of the offending with which he was charged raised a contradiction for him in endeavouring to rely on the defence of compulsion.  It was impossible for him on the one hand to claim no involvement whatever in the offending but then, as an  alternative,  to  suggest  that  if  he  were  found  to  have  been  involved  in  the offending, he was involved solely because on each occasion he was threatened with death or grievous bodily harm and it  was only because of those threats that  he committed the offences.

[56]     Put another way, as we have noted, accused persons almost inevitably need to concede their involvement in the offences with which they are charged in order to raise the defence that they only committed those offences because of compulsion. Mr Sowman’s stance at trial precluded that approach.

[57]     In all those circumstances,  we  agree  with  the  Judge  that  the  defence  of compulsion was not available on all of the evidence in the case.  The appeal against conviction is accordingly dismissed.

Appeal against Sentence

[58] At sentencing, Simon France J concluded that Mr Sowman was a “central player in the manufacturing enterprise”: at [9]. He reached that view because the jury’s verdict was a rejection of Mr Sparkes’ evidence, “the drugs were everywhere and in reasonably plain view” and it was not credible that such would be the case if Mr Sowman was “truly only providing premises under duress”. Email exchanges between the appellant and the person who had travelled from Taranaki pointed strongly against Mr Sowman’s description of his role. Further, the assertion of acting under compulsion did not impact on the Arms Act charges where Mr Sparkes had claimed the pistol and ammunition were his, yet the jury convicted Mr Sowman (all at [8]).

[59]     The Judge took the view this was a “significant manufacturing operation”. He considered a  pre-sentence  and  a  psychologist’s  report,  noted the  appellant’s previous convictions – including several for drug offending – and then adopted a starting point for the methamphetamine manufacturing charge of eight and a half

years’ imprisonment.  The Arms Act offending was treated as an aggravating factor, resulting in a sentence of nine years with a 50 percent period of minimum imprisonment.

[60]     While accepting that the 50 percent period of minimum imprisonment for whatever term imposed was appropriate, Mr Gotlieb submitted it was inappropriate for the Judge to find Mr Sowman a “central player in the manufacturing enterprise”. It was also argued that some of the Judge’s remarks disregarded the jury’s questions concerning duress.   That led, Mr Gotlieb submitted, to the Judge adopting a start point about two years higher than should have been the case.   The Judge, he said, was also wrong to find no mitigating features: duress should have been taken into account to result in a sentence on the methamphetamine manufacturing count of no more than five years’ imprisonment.

[61]     Mr Raftery submitted it was not justifiable to criticise the Judge’s starting point by reference to the jury question.  This was a case well within band two in R v Fatu [2006] 2 NZLR 72 at [43] (CA). A starting point of eight and a half years’ within a band allowing for four to 11 years’ imprisonment was clearly available to the trial Judge and an uplift of six months for drug offending associated with firearms offending could not, Mr Raftery submitted, be faulted.

[62]     In our view, the Judge, as the trial Judge, was in the best position to assess the appellant’s involvement in the offending at his property.   Whilst it may have been a touch graphic to describe him as a “central player”, Mr Sowman was clearly deeply and directly involved in all of the offending at his property of which he was convicted.  The Judge was right to conclude that this was a significant manufacturing operation involving a large amount of precursor substances and equipment capable of being used to manufacture substantial quantities of methamphetamine, with all of that associated with a firearm.

[63]     It follows that  we conclude that  the Judge’s starting  point  was one well available to him for offending on this scale and we agree with the Crown that a comparatively modest increase in the term imposed for drug offending involved with firearms offending was well within the Judge’s discretion.

[64]     The appeal against sentence is dismissed.

Solicitors:

Crown Law Office, Wellington