R v Speight

[2008] NZCA 497

IN THE COURT OF APPEAL OF NEW ZEALAND

CA491/2008
[2008] NZCA 497

THE QUEEN

v

TREVOR JOHN SPEIGHT

Hearing:25 November 2008

Court:O'Regan, Hugh Williams and Harrison JJ

Counsel:P E Dacre for Appellant

A Markham for Crown

Judgment:27 November 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal against conviction for possession of MDMA is allowed and the conviction for that count is quashed.  The appeal against conviction and sentence is otherwise dismissed.

REASONS OF THE COURT

(Given by Harrison J)

Introduction

[1]       Mr Trevor Speight appeals against his conviction in the High Court at Auckland on one count of possession of a Class A controlled drug, methamphetamine, for supply and one of possession of a Class B controlled drug, MDMA or ecstasy.  Mr Speight also appeals against his sentence of three years imprisonment imposed by Cooper J in the High Court at Auckland on 15 July 2008 on the charge of possessing methamphetamine for supply.

Background

[2]       The material facts are not in dispute on appeal.  A car driven by Mr Speight was stopped by the police in Auckland city on 30 November 2006.  The police conducted a search: s 202B of the Crimes Act 1961.  Located in Mr Speight’s jacket was a black leather purse with three ziplock plastic bags containing 9.1 grams of methamphetamine and 1.6 grams of MDMA.  He also was carrying cash of $7,065, predominantly in $100 and $20 denominations.  The police found a number of drug utensils and paraphernalia in the car including electronic measuring scales and 50 new plastic ziplock bags of the type commonly used to sell methamphetamine.  Some weapons including two knives were also found.

Conviction

[3]       The Crown charged Mr Speight with counts of possessing methamphetamine for supply and possessing MDMA for supply.  Both charges were laid indictably in the High Court.  However, unknown to the Crown Solicitor, the police had independently charged Mr Speight with possession of MDMA simpliciter.  He was convicted and discharged in the District Court at Auckland on 13 December 2007 following a plea of guilty to that charge. 

[4]       Mr Speight pleaded not guilty to and was tried on the two supply counts in the High Court at Auckland commencing on 13 March 2008.  The trial Judge, Cooper J, did not learn of Mr Speight’s conviction in the District Court for the offence of possessing MDMA until advised by the Registrar while the jury was deliberating on 14 March 2008.  The Judge took the jury verdicts on both counts after conferring with counsel.  The jury found him guilty of possessing methamphetamine for supply.  He was found not guilty of possessing MDMA for supply but guilty of the included count of possession of MDMA.  The Judge entered convictions accordingly.  However, when sentencing Mr Speight on 15 July 2008, Cooper J discharged him on the count of possession of MDMA.

[5]       Ms Annabel Markham for the Crown responsibly accepts that Mr Speight’s conviction in the High Court for the offence of possessing MDMA should be quashed: see R v Lee [1973] 1 NZLR 13 (CA). Otherwise Mr Speight would be convicted twice on the same charge. Accordingly, we quash Mr Speight’s conviction in the High Court on the charge of possessing MDMA.

[6]       Nevertheless, Mr Paul Dacre forcefully maintains Mr Speight’s appeal against his conviction on the count of possessing methamphetamine for supply.  He submits there is an inherent unfairness in this case, leading to a miscarriage of justice.  That is because the Crown’s case before the jury was that Mr Speight was a dealer in two different types of drugs.  There is a possibility, Mr Dacre says, that the jury’s guilty verdict on the count of supplying methamphetamine was tainted by consideration of the MDMA dealing charge.  If Mr Speight’s conviction on the MDMA charge had come to light during trial, Mr Dacre submits, its existence would have undermined the credibility of the Crown’s case and added credibility to Mr Speight’s evidence, because he would have been facing only one charge.  Therefore, Mr Dacre submits, his defence has been prejudiced.

[7]       Despite Mr Dacre’s submission, we agree with Ms Markham that evidence of Mr Speight’s possession of the MDMA would have been admissible at trial on the count of supplying methamphetamine.  It was directly relevant to the credibility of Mr Speight’s assertions that, first, the drugs were all for personal use and, second, the drugs had been given to him by an unnamed associate as payment for $4,000-$5,000 of car restoration work. 

[8]       Moreover, Mr Speight’s acquittal on the charge of possessing MDMA for supply, following Cooper J’s orthodox jury direction to determine the two counts separately on the evidence, is a telling answer to Mr Dacre’s general proposition of tainting arising from the existence of two counts in the indictment.  The jury’s verdicts stand as a rejection of the Crown’s case that Mr Speight was dealing in both types of drug. 

[9]       Mr Speight’s appeal against conviction for possessing methamphetamine for supply is dismissed.

Sentence

[10]     Cooper J sentenced Mr Speight to a term of three years imprisonment.  He adopted a starting point of three years nine months.  Its incontestability is illustrated by Mr Dacre’s proposal before him of a starting point of three years six months.  There is little material difference between the two.

[11]     Cooper J made an allowance against this starting point of nine months or 20 per cent.  By any measure this was a generous recognition of mitigating circumstances in the form of Mr Speight’s current motivation to change (confirmed, Mr Dacre advises us, by the rehabilitative steps which he has taken in prison) and the probation officer’s assessment of his risk of re-offending as low.  The Judge did not err by rejecting Mr Dacre’s submission that he should allow a further substantial credit to bring the sentence within the range of a term of home detention.  Mr Speight was fortunate to receive any reduction against the starting point following a not guilty plea and trial.  It follows that Mr Speight could not expect any greater discount, and the end sentence of three years imprisonment was well within the range for this offending.

[12]     Mr Speight’s appeal against the sentence of three years imprisonment is also dismissed.

Solicitors:

Crown Law Office, Wellington