R v Tang HC Auckland CRI-2009-004-13439
[2011] NZHC 1187
•4 October 2011
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2009-004-13439
THE QUEEN
v
ZHONG JIE TANG, TERRENCE ARTHUR SIMS, STEVEN JOHN BAIRD, ROBERT JONES,
WENBIN GU AND JIALIN WU
Hearing: 21 September 2011
Counsel: Y Yelavich and P Carter for the Crown
P Tomlinson for Mr Tang
M Dyhrberg and O Hintze for Mr Sims
A Speed for Mr Baird
S Tait for Mr Jones M Edgar for Mr Gu D Niven for Mr Wu
Judgment: 4 October 2011 at 4:45 PM
JUDGMENT OF WOODHOUSE J (Disputed Facts)
Solicitors:
This judgment was delivered by me on 4 October 2011 at 4:45 p.m. pursuant to r 11.5 of the High Court Rules 1985. Registrar/Deputy Registrar
……………………………………
Ms Y Yelavich, Meredith Connell, Office of the Crown Solicitor, Auckland
Mr P Tomlinson, Solicitor, Auckland
Ms M Dyhrberg, Barrister, Auckland
Mr A Speed, Barrister, Auckland
Mr S Tait, Barrister, AucklandMr M Edgar, Barrister, Auckland
Mr D Niven, Barrister, Auckland
R V TANG, HC AK CRI-2009-004-13439 4 October 2011
Introduction
[1] Following a three week trial the accused were found guilty by a jury of a number of counts of manufacturing and supplying methamphetamine and some related counts. On receipt of Crown submissions for sentencing an issue of fact arose as to the quantity of methamphetamine that had been manufactured.
[2] The Crown submitted that ―an inference is available that the amount of methamphetamine manufactured during the period of offending is significant and likely to be above two kilograms‖. This was substantially based on extrapolation from scientific evidence from experiments relating to the amount of toluene that had been used by the offenders. Defence counsel submitted that at most around 300 grams of methamphetamine may have been manufactured and, in effect, the offenders were entitled to the benefit of the doubt to the effect that it was less.
[3] On 21 September 2011 there was a disputed facts hearing which occupied a day. This judgment records my conclusions. This judgment will also serve as an expanded summary of facts and a note of some other matters for the purposes of sentencing.
The offences
[4] The accused were found guilty on all counts that went to the Jury. (Mr Baird had been discharged on two counts under s 347 of the Crimes Act at the conclusion of the evidence for the Crown.)1
[5] The guilty verdicts were on the following counts. The dates are all in 2009.
(a) Count 1 – Mr Tang and Mr Sims – manufacturing methamphetamine between 6 April and 24 April.
1 R v Tang & Ors HC Auckland, CRI-2009-004-13439, 27 June 2011.
(b)Count 2 – Mr Tang, Mr Sims and Mr Baird – supplying methamphetamine between 25 April and 25 May.
(c) Count 3 – all accused – manufacturing methamphetamine between 26
May and 28 May.
(d) Count 4 – five accused (excluding Mr Gu who was not charged) –
supplying methamphetamine between 28 May and 30 May.
(e) Count 5 – all accused – manufacturing methamphetamine between 2
June and 4 June.
(f) Count 6 – five accused (excluding Mr Gu who was not charged) –
supplying methamphetamine on 5 June.
(g) Count 7 – all accused – manufacturing methamphetamine between 8
June and 11 June.
(h)Count 8 – Mr Tang, Mr Gu and Mr Wu – possession of methamphetamine for supply on 11 June – particulars: ―the white powder weighing 34.5 grams found in the restaurant’s kitchen at 189
Manukau Road, Epsom‖.
(i)Count 9 – Mr Tang, Mr Gu and Mr Wu – possession of methamphetamine for supply on 11 June –particulars: ―the crystalline material weighing 40.9 grams found in the restaurant’s kitchen at 189
Manukau Road, Epsom‖.
[6] There are some further offences, but it is convenient to note at this point that the offences outlined above are the main offences and they can be seen to fall into four groups. There are three groups involving manufacture followed by supply: counts 1-2; counts 3-4; and counts 5-6. The Crown alleged – and I am satisfied the jury concluded – that the methamphetamine manufactured on one count between particular dates was supplied in the immediately following period. There is the fourth instance of manufacturing between 8 and 11 June (count 7) followed by
possession of methamphetamine for supply (counts 8 and 9). The police operation was terminated on 11 June.
[7]
subst
The ances a
(a)
remaining offences were for possession of equipment, precursor nd materials, as follows:
Count 10 – Mr Tang, Mr Gu and Mr Wu – possession of equipment
for manufacture of methamphetamine – particulars: ―hot plates, pH strips, protective face masks and gloves, respiratory gas masks, scales,
funnels, conical flasks and other glassware found at 189 Manukau
Road, Epsom‖. (b)
Count 11 – Mr Tang, Mr Gu and Mr Wu – possession of precursor
substance for manufacture of methamphetamine – particulars:
―pseudoephedrine found at 189 Manukau Road, Epsom‖.
(c)
Count 12 – Mr Sims – possession of equipment for manufacture of methamphetamine – particulars: ―reaction flasks, glass condensers,
par bombs, hot plates, pH strips, pH strips, pH meter, steam distillers and assorted glassware found at 528 Makarau Road, Kaukapakapa‖. (d)
Count 13 – Mr Sims – possession of precursor substances for manufacture of methamphetamine – particular: ―pseudoephedrine,
toluene and hydrochloric acid found at 528 Makarau Road,
Kaukapakapa‖.
(e)
Count 14 – Mr Sims – possession of materials for manufacture of methamphetamine – particulars: ―sodium hydroxide, iodine, fuelite,
hypophosphorous acid and acetone found at 528 Makarau Road,
Kaukapakapa‖.
(f)
Count 16 – Mr Jones – possession of materials for manufacture of methamphetamine – particulars: ―isopropyl alcohol and iodine‖.
Legal principles
[8] Section 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
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.
[9] No submissions were made relating to the application of s 24. The principal disputed fact – the quantity by weight of methamphetamine that was manufactured and, in turn, supplied – is, of course, a central issue for the purposes of sentencing because of the Court of Appeal guidelines in R v Fatu2 on sentencing for the manufacture, supply and importation of methamphetamine.
[10] In respect of manufacture of methamphetamine the Court of Appeal said:
Guidelines for offending involving the manufacture of methamphetamine
[37] Cases involving the manufacture of methamphetamine can be problematical. Whether the scale of the offending can be assessed depends very much on chance, the evidence of manufacture on hand at the time of police intervention, volumes of precursor materials located and the availability of extrinsic evidence (for example, in the form of electronic intercepts).
[38] Obviously it is open to a sentencing Judge to make findings of fact as to the extent of past offending based on evidence, perhaps in the form of admissions, intercepted communications, cash movements, tick lists and chemical purchases. If there is no agreed summary of facts, such findings must be made in accordance with s 24(2)(c) of the Sentencing Act (that is, on the basis of the criminal standard of proof).
[39] Rather more problematical is the extent to which the Courts should sentence on the basis of potential yield. In R v Terewi [1999] 3 NZLR 62 at paras [5] – [8], this Court considered that sentencing Judges are entitled to have regard to potential revenue anticipated by the offender as being able to be derived from the set-up of a hydroponic cannabis-growing operation.
[40] The Terewi approach is broadly consistent with the argument for the Crown, but we have reservations as to its applicability in the present context. As a matter of principle, an offender should only be sentenced in relation to offending which he or she admits or which the Crown can prove. It is not right for an offender to be sentenced on the basis of offending that he or she would or could have committed had the police not intervened. On the other
hand, the Courts must take a realistic view of the dynamics of this particular form of offending. Those who gear up to manufacture methamphetamine are not likely to be content with a single ―cook‖. As was recognised in Worth v R [2001] WASCA 303 at para [50], the ―practical potential of the operation‖ must be a relevant consideration.
[41] A principled approach is to recognise that manufacturing methamphetamine necessarily involves criminality at two levels: first, the possession of equipment for the purpose of manufacturing (which is an offence against s 12A of the Misuse of Drugs Act) and secondly, the actual use of that equipment to manufacture methamphetamine. When offenders put together the equipment to manufacture methamphetamine, the culpability of their conduct is closely associated with the likelihood that the equipment will be used for that purpose. This approach can be taken directly (if the prosecution lays charges under s 12A), but can also be implemented indirectly by treating the possession of the equipment as an aggravating feature of the primary manufacturing offending. In the end the approach which we prefer leads to the same conclusion as that contended for by the Crown, albeit that we have reached it by perhaps a slightly circuitous route.
[42] Where the Crown can establish that large quantities of methamphetamine have been manufactured, the Court may regard the criminality in gearing up to manufacture as being absorbed by the culpability of the primary offending. In other cases, where the evidence as to how much was manufactured is uncertain, the position is different. Nonetheless it is right to recognise that methamphetamine manufacture is always (or almost always) going to involve significant commerciality. We say this because the difficulties, expense and risks involved in manufacturing methamphetamine make it inherently unlikely that such an operation would be set up to produce drugs for purely personal consumption.
[43] In those circumstances we consider that appropriate sentencing bands for those who are the primary offenders in methamphetamine manufacturing operations should be based on uplifts of 10 per cent – 20 per cent on those applicable in the case of importers:
(a) Band one – not applicable for reasons given in para [42].
(b) Band two – manufacturing up to 250 g – four years’ to 11 years’
imprisonment.
(c) Band three – manufacturing large commercial quantities (250 g to
500 g) – ten years’ to 15 years’ imprisonment.
(d) Band four – manufacturing very large commercial quantities (500 g or more) – 13 years’ to life imprisonment.
The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question. Findings of fact in this area must, of course, be made in accordance with s 24(2)(c) of the Sentencing Act.
[11] The sentencing bands in Fatu for the sale or supply of methamphetamine are as follows:
(a) Band one – low-level supply (less than 5 g) – two years’ to four
years’ imprisonment.
(b) Band two – supplying commercial quantities (5 g to 250 g) – three
years’ to nine years’ imprisonment.
(c) Band three – supplying large commercial quantities (250 g to 500 g)
– eight years’ to 11 years’ imprisonment.
(d) Band four – supplying very large commercial quantities (500 g or more) – ten years’ to life imprisonment.
[12] The sentencing bands are the starting points for sentencing, before taking into account any aggravating and mitigating factors relating to the offender, as opposed to any aggravating or mitigating factors relating to the offence.
The facts
The broad picture
[13] It was the Crown case that there was a common criminal enterprise. During the trial I ruled that there was sufficient evidence to go to the jury that there was a common criminal enterprise.3 I am satisfied that the jury concluded that there was. The main relevance of this for the purposes of sentencing is that I am also satisfied that some of the accused would have been found guilty as parties either under s 66(2) of the Crimes Act (―common intention to prosecute any unlawful purpose‖) or s 66(1) (aiding and abetting).
[14] This common criminal enterprise was established at least by 6 April 2009 by Mr Tang with Mr Sims. Mr Wu was involved at least by 18 April 2009, Mr Baird at least by 2 May 2009, and the remaining three by around 20 May 2009. This expansion of the criminal enterprise to involve all six by around 20 May 2009 is apparent from the summary provided above. Mr Tang and Mr Sims were involved in the first occasion of manufacturing completed by around 24 April 2009. Mr Baird became involved soon after that and, with Mr Tang and Mr Sims, was found guilty of supplying the first quantity of methamphetamine that had been manufactured in
April. All six were involved by the time of the second occasion of manufacturing in late May 2009 (count 3).
[15] The organiser of this criminal group was Mr Tang. Mr Tang was the lessee of the Jacaranda Motel in Epsom. Mr Tang also operated an adjoining restaurant. It is not in issue4 that part of the manufacturing of methamphetamine occurred in the restaurant. I will refer to the ―motel‖ as including the restaurant. The motel was the hub of the operation.
[16] It is also not in issue that the manufacture of methamphetamine occurred in two stages which are common to the illegal manufacture of methamphetamine.
―Stage one‖ involves the extraction of pseudoephedrine from a pharmaceutical preparation containing pseudoephedrine, often ContacNT tablets. ―Stage two‖ involves the production of methamphetamine hydrochloride from the pseudoephedrine.
[17] The Crown case was that, on the first three occasions of manufacturing, stage one took place at the motel and stage two was carried out by Mr Sims at his home in Kaukapakapa. I am satisfied that the Crown contention is correct. Not a great deal turns on the point for the purposes of sentencing. There is an issue, which arose during the hearing, whether stage two took place at the motel on the fourth occasion (count 7). This is discussed further below.
[18] Much of the Crown evidence was based on intercepted text messages and mobile telephone conversations. Almost all of the intercepted text messages (44) were in the earlier period, from 6 April to 11 May 2009. 39 of these were between Mr Tang and Mr Sims. There is a total of 160 intercepted telephone conversations. Mr Tang was one of the parties to all of those conversations apart from three. The remaining three were between Mr Sims and a Mr Shaw, relating to supply of methamphetamine, amongst other things. Mr Tang had many conversations with all of the other offenders, and with an unidentified male on three occasions. There was
evidence from police surveillance including, in particular, surveillance of the motel.
4 At least for the purposes of sentencing. This qualification can be deemed to be included in any further unqualified references to a matter not in issue.
There is a substantial body of evidence from what was found by police on and following termination of the police operation at around 2:25 a.m. on 11 June 2009. The motel had been under surveillance and police immediately entered the motel where Mr Tang, Mr Wu and Mr Gu were present. The methamphetamine particularised in counts 8 and 9 totalling 75.4 grams, and other items associated with the manufacture of methamphetamine, were found.
Toluene
[19] There is evidence from intercepted texts and conversations indicating that over the period of the interceptions Mr Tang obtained a total of 280 or 290 litres of toluene.5 The defence challenged the evidence to the extent of 60 litres.
[20] I am satisfied to the requisite standard that a total of at least 280 litres was obtained by Mr Tang over the relevant period. 100 litres were supplied by Mr Sims, all in 20 litre containers. The remaining 180 litres were supplied by Mr Jones, also in 20 litre containers. Mr Tang was regularly seeking further supplies of toluene. I am satisfied that, by the date of termination of the police operation on 11 June 2009, most of this toluene had been used. Police found a total of 11 empty, or near empty,
20 litre containers, which accounts for 220 litres (and which appears to be accepted by the defence). There is evidence which satisfies me that some other containers had been disposed of by Mr Gu at Mr Tang’s request.
[21] Dr Anne Coxon is an ESR forensic scientist whose expertise in relation to the manufacture of methamphetamine is not in question. She conducted two experiments to determine how much methamphetamine could be produced from a product containing pseudoephedrine using a given quantity of toluene. In both stages of manufacture of methamphetamine (as earlier described), toluene is commonly used as a solvent: in stage one to separate the pseudoephedrine from other material; in stage two to separate the methamphetamine base from the unwanted
reaction mixture. In both experiments Dr Coxon used three litres of toluene in each
5 The officer-in-charge, Detective Sergeant Osbourne, calculated a total of 290 litres. In submissions for the Crown the figure is put at 280 litres. Nothing of consequence for sentencing turns on this difference.
stage. On one occasion this produced 49.5 grams of methamphetamine and on the other occasion 58.7 grams.
[22] Assuming a total of 280 litres of toluene had been used in manufacture, the conversion rate established by Dr Coxon would result in manufacture of a total of between 2.3 to 2.7 kilograms of methamphetamine.
[23] At the conclusion of her report Dr Coxon said:
It should be noted that the amount of toluene used in these processes may vary greatly depending on the exact method used and the experience of the operator. Different amounts of toluene may or may not have an effect on the yield of ―final product‖ methamphetamine hydrochloride achieved.
For the Crown, this qualification was recognised but with the primary submission, having regard to all of the evidence, being as earlier noted – the total ―likely to be above two kilograms‖.
[24] Further evidence was led from Dr Coxon and she was cross-examined. She said that, using the method she did use, six litres of toluene was the minimum required to produce a quantity of methamphetamine within the range she established; that is to say, six litres was the minimum required to produce approximately 54 grams of methamphetamine (taking an average). In other words, on a unit basis and taking the average, provided there is sufficient pseudoephedrine at the outset, one litre of toluene over both stages will produce nine grams of methamphetamine. And one litre is the minimum required to produce nine grams.
[25] Dr Coxon was unable to say whether there was any maximum quantity of toluene that should be used before the quantity of methamphetamine produced would decline. Dr Coxon acknowledged that if the toluene process is repeated, in stage one or stage two (or, presumably, both stages), an additional amount of methamphetamine might be extracted, but this would be a proportion of what had been extracted on the first occasion. The broad indication from Dr Coxon was that this would be a reasonably small proportion: ―a little bit more‖ as acknowledged by
Dr Coxon in answer to a question. Dr Coxon also said:6
6 Notes of evidence p 8, ll 8-15.
… it would be my feeling that if you started using bigger volumes than that, that this particular amount of, excuse me, Contac NT capsules we started with, you’re just giving yourself more problems by adding more volume of toluene that you’re having to deal with, you’re having to manoeuvre from one container to another, you’re having to separate out from other liquids and then evaporate off, so to no real advantage for yourself. So, I mean, theoretically somebody could add as much as they wanted but you’re not going to do that.
Methamphetamine found
[26] The total of methamphetamine found by police at the motel on 11 June 2009 is 75.4 grams. There was one plastic bag of 40.9 grams, being the amount particularised in count 9. The total of 34.5 grams particularised in count 8 came from six separate plastic bags of methamphetamine ranging from 48 milligrams to
23.2 grams. Two issues of fact relating to this methamphetamine arose during the disputed facts hearing.
[27] One issue is whether some or all of this methamphetamine was manufactured at the motel during the night of 10-11 June 2009. The case as put by the Crown to the jury was that manufacturing had occurred at the motel on this occasion. As earlier noted, the case put to the jury by the Crown in respect of the first three occasions of manufacture, and which I am satisfied was established, was that the first stage had taken place at the motel and the second stage was carried out by Mr Sims at his home in Kaukapakapa. There is a body of evidence supporting the Crown case on count 7. But some of this might also be consistent with stage one occurring at the motel.
[28] The argument that stage two did not occur at the motel in count 7 was advanced for Mr Gu and Mr Wu. It was advanced as part of the broader submission for each of them that their involvement in the manufacture of methamphetamine was peripheral. In support of the argument that manufacturing did not occur at the motel in count 7 reliance was placed on the fact that the Crown case for the first three occasions of manufacturing was that stage one only occurred at the motel. It was submitted that the evidence establishing manufacture was not completed at the motel on the first three occasions is evidence that manufacture did not occur at the motel on the fourth occasion, on count 7.
[29] The evidence as a whole satisfies me beyond reasonable doubt that manufacturing did occur at the motel on the fourth occasion. I will note some only of the principal evidence that has led me to this conclusion after weighing the relevant evidence.
[30] All of the 75.4 grams of methamphetamine was found in the restaurant kitchen at the motel. This methamphetamine was found after Messrs Tang, Gu and Wu had been at the motel from 9:48 pm on 10 June until police entered the motel at around 2:25 am on 11 June. The evidence establishes that this was ample time to complete the manufacture of methamphetamine.
[31] There was the large quantity of 40.9 grams in a single plastic bag and described as a ―white paste‖. One of the plastic bags making up the total of 34.5 grams (count 8) was a single quantity of 23.2 grams in a plastic bag and described as
―damp white powder‖.
[32] When police entered Mr Wu was found in a toilet with his hands in the cistern. From subsequent analysis, and notwithstanding submissions for the defence, I am satisfied that Mr Wu had flushed methamphetamine down the toilet. The quantity is unknown.
[33] An ESR scientist took swabs from the restaurant kitchen. The evidence was that these were consistent with the manufacture of methamphetamine. There were challenges to that evidence but none which leaves me in any material doubt. Equipment was found at the motel that is used for the manufacture of methamphetamine and some equipment was found with traces consistent with manufacture. This included a reaction vessel containing clear liquid which contained by-products of the reaction in stage two.
[34] There is evidence that over the preceding days Mr Wu, at Mr Tang’s request, had been trying to obtain MSM from pharmacies. MSM is commonly added to methamphetamine as a cutting agent. MSM was found at the motel on 11 June.
[35] Capsules containing pseudoephedrine were found with sufficient pseudoephedrine to produce between approximately 11 and 15 grams of methamphetamine. There were defence submissions to the essential effect that this is broadly indicative of small quantities manufactured in the past. The conclusion I draw from this, without attaching a lot of weight to it, is that this was what was left over from an earlier extraction of pseudoephedrine in stage one.
[36] The second issue is whether at least some of the methamphetamine found at the motel was methamphetamine returned to Mr Tang by Mr Jones. This is based on conversations between Mr Tang and Mr Jones indicating that Mr Jones was going to return some methamphetamine, probably because Mr Jones was not satisfied with its quality. In dealing with this point Mr Tomlinson referred to the 75.4 grams of methamphetamine found on 11 June and acknowledged that ―the Court may consider concluding that this was the amount produced on that night‖. He then submitted:
However before that conclusion can be reached it is submitted that there was evidence that a part of that amount, possibly a half or more, was returned product given to Mr Tang that night [that is to say, the night of 10 June] by Mr Jones. See Bolivia 273, p 292 of transcript booklet. Tang says to Jones to bring what he washed for him last time and he would sort him out on the weekend. It is submitted this is a reference to conversations held earlier in the week when Jones wasn’t happy with the product. Again it is not known how much was involved.
[37] This conversation is linked to a conversation between Mr Tang and Mr Sims on 4 June when Mr Jones told Mr Tang something was ―foul‖ and Mr Tang said ―just don’t touch it and then tomorrow I can.‖7 From this and some other conversations, I am satisfied that Mr Jones did return some methamphetamine to Mr Tang because of the quality. But I am also satisfied that the return had been made by 5 June. This is apparent from a conversation between Mr Tang and Mr Baird on 5 June. Mr Tang told Mr Baird that ―Rob‖ had made a return. The reference to Rob is clearly a reference to Mr Jones. Mr Baird commented ―Rob’s just fussy‖.8 I am satisfied that this conversation relates to the preceding conversation between Mr Tang and Mr
Jones, on 4 June, and establishes that the return had by then been made by Mr Jones.
7 Bolivia 200, pp 217-219, Thursday 4 June 2009, commencing 21:27. I note that the statement as produced in the transcript is as recorded at [38] above; that is to say it does end as recorded at [38].
8 Bolivia 209, pp 229-230, Friday 5 June 2009, commencing 15:53.
[38] In coming to this conclusion I have had regard to further conversations between Mr Tang and Mr Jones between the one on 4 June 2009 and the one on 10
June referred to by Mr Tomlinson. It is also relevant that there were meetings between Mr Tang and Mr Jones before 10 June, including a meeting on 4 June following the complaint from Mr Jones. The conversation on 10 June referred to by Mr Tomlinson9 occurred in the course of a conversation to arrange another meeting. On this occasion, as on numbers of other occasions, the primary purpose was for Mr Jones to supply Mr Tang with toluene. The relevant part of the conversation was as
follows:
TANG: Yeah I will catch up with you in ahhh Caltex aye? JONES: Yeah.
TANG: Yeah, bring that ah what I wash for you last time. JONES: Yeah.
TANG: I will (Pause) do that, I will sort you out in the weekend.
[39] Mr Tomlinson, in his submission, referred to the second statement by Mr Tang, but the submission as to what was said is not a direct quote. The submission, reasonably enough, is Mr Tomlinson’s interpretation of what was said. As can be seen from the verbatim transcript, there is no pronoun relating to the verb ―bring‖. Standing alone it could be taken to be a direction from Mr Tang to Mr Jones to bring something. However, reading this single statement in the full context of the conversation, as recorded above, putting this particular conversation into the context of the preceding discussions and meetings, and arrangements for meetings, that I have briefly noted, and further noting (but not emphasising) that Mr Tang is not a native speaker of English, satisfies me that Mr Tang was at this point proposing to deliver the item to Mr Jones, not the other way around. It probably was delivery back to Mr Jones of whatever it is that Mr Jones had returned to Mr Tang during the previous week. In any event, on the material issue, I am satisfied beyond reasonable doubt that none of the methamphetamine found at the motel on 11 June was
methamphetamine that had been returned by Mr Jones to Mr Tang.
9 Bolivia 273, p 292, Wednesday 10 June 2009, commencing 21:54.
Cash found by police
[40] Police found $310,000 carefully hidden at Mr Baird’s home. Mr Tang had
$30,000 in cash in his possession. The others had the following: Mr Sims, in his car,
$5,960; Mr Jones, $8,480; Mr Gu, $4,290; and Mr Wu, $3,300. The Crown referred to these sums of cash as indicative of the large scale of the operation. There are some questions as to the relative significance of the sums found in the possession of Messrs Sims, Gu and Wu. These are issues essentially of weight and not a central part of the disputed facts. I note, nevertheless, that the amounts found cannot in my judgment be regarded as insignificant simply by way of comparison with the far greater sums found in the possession of Mr Tang and, in particular, Mr Baird.
[41] The main issue, arising during the disputed facts hearing, and from earlier evidence, is whether the $310,000 hidden at Mr Baird’s home, or at least some of it, came from the methamphetamine dealing for which he is now to be sentenced.
[42] I have decided not to seek to make a finding of fact as to whether some or all of the $310,000 came from this methamphetamine dealing. There are several reasons. There are proceedings against Mr Baird (and Mr Tang) under the Criminal Proceeds (Recovery) Act 2009 seeking forfeiture of the cash (and other property). The standard of proof in those proceedings, for an assets forfeiture order or a profit forfeiture order, will be on the balance of probabilities. This does not, of itself, mean that I am in some way constrained from making a disputed facts finding, with the onus being on the Crown to prove relevant matters beyond reasonable doubt. However, this issue about the $310,000 arose in the course of the hearing which commenced primarily to deal with the direct evidence on quantity, the arguments about the money were not fully developed, and there may be additional evidence that either the defence or the Crown may wish to adduce. Coupled with this is the fact that the total of the cash found would not be determinative of the quantity of methamphetamine manufactured or distributed.
[43] The last point – the total amount of cash could not be determinative – can be illustrated by simple arithmetical calculations based on unchallenged evidence for the Crown relating to price. On the assumption, for the purposes of illustration, that
all of the money found by police – around $360,000 – came from sales of methamphetamine that had been manufactured and then sold on the first three occasions, this would represent the proceeds of sale of between approximately 360 grams and 1.4 kilograms of methamphetamine. This very wide range arises because of the wide variations in price for methamphetamine sold in various quantities, and the wide variation in unit price depending on whether the sale is in one gram lots or
one ounce lots (being the quantities referred to in the Crown evidence on price). 10
[44] There is further and more direct evidence of the amounts of money being dealt with, and with this evidence also indicating that Mr Baird was fully involved in handling the distribution of methamphetamine with Mr Tang. This comes from intercepted conversations.11 Mr Baird made sales and accounted for these to Mr Tang. There are significant discussions recorded at pages 86-90. The first was between Mr Tang and an unknown male, referred to by Mr Tang in the immediately following conversation with Mr Baird as ―boss side‖. The unknown male told Mr Tang that there was some money missing. There was the following (p 86):
TANG: There were mistakes?
UKM1: There were. There were. There were. Maybe not a much of a mistake, maybe eh, you accidentally forgot, eh in the fifty dollar, fifty dollars ones, one of the stacks were one thousand dollars short.
TANG: Where, fifty dollars where?
UKM1: You had fifty dollars bound in a piece. And you had twenty-five thousand dollars in a piece. One, two, three, four, five, five piece. Five thousand a bundle.
[45] I am satisfied that the total that they were talking about in relation to this particular accounting was $75,000 – one bundle of $50,000 and one of $25,000. Immediately following this discussion Mr Tang phoned Mr Baird to tell him that the
$50,000 bundle was $1,000 short. This relates to an earlier delivery of money by Mr
Baird to Mr Tang. Mr Baird said, after discussing the detail and understanding the
problem: ―Yeah, okay. Yeah, that’s all right I’ll sort it out‖. This was on 25 May
10 Based on the evidence and assuming sales either in one gram lots or one ounce lots, and taking an ounce to be 28 grams: (1) 360 grams is calculated on the basis of sale in one gram lots at $1,000 per gram, being the highest price indicated by the evidence for gram lots. (2) 1.4 kilograms comes from sale in one ounce lots at the lowest price of $7,000 per ounce ($250 per gram).
11 See Bolivia 45, pp 40-41; Bolivia 51, p 48; Bolivia 95, pp 86-90.
2009, with the earlier discussion between Mr Baird and Mr Tang having been on 23
May.
[46] From this evidence I am satisfied that, following the first occasion of manufacturing and supply (counts 1 and 2), Mr Baird sold methamphetamine and then accounted to Mr Tang for sales by delivering $75,000 to Mr Tang. This evidence, coupled with the other evidence I have already dealt with relating to cash that was found, is not definitive in relation to quantities. The weight I attach to it is that it is an important part of the body of evidence, coupled with inferences arising from that evidence, that there was manufacture and supply of methamphetamine in large commercial quantities.
Other evidence bearing on the quantity of methamphetamine and the general scale of the operation
[47] Police found substantial quantities of precursor substances, and equipment and materials capable of being used, and much of which was used, in the manufacture of methamphetamine. I do not refer to this evidence for the purpose of assessing quantities that might have been manufactured in the future. The relevance of this evidence, for the purposes of sentencing, is that it is part of the totality of evidence establishing that the manufacture of methamphetamine in this case was on a large commercial scale.
[48] I have referred to some of the evidence as to what was found at the motel and the scientific evidence as to what had occurred.
[49] At Mr Sims’ home police found very large quantities of precursor substances, and equipment and materials that had been used, and which were clearly intended to be used again, in the manufacture of methamphetamine. Dr Coxon described this as
―one of the larger scenes that I have attended here in New Zealand‖.12 It took five
days for police and ESR scientists to go through and catalogue everything that was found.
[50] A single but telling example is 12 litres of hypophosphorous acid. The unchallenged evidence is that, on conventional ratios, this could be used to manufacture around 11 kilograms of methamphetamine. Of significance in another way is that this hypophosphorous acid would have cost up to approximately
$120,000. The cost is based on unchallenged evidence for the Crown. 13 Mr Sims,
with no outwards signs of affluence, had possession of a product vital for methamphetamine manufacture at this approximate cost in the course of the manufacturing and supply of methamphetamine for which he has been found guilty. This is not solely evidence against Mr Sims. It is evidence bearing on the scale of the operation Mr Sims was involved in.
[51] I will refer to one further example amongst all of the items found at Mr Sims’ home. This is an empty 200 litre container which had contained toluene. I do not intend to draw any precise conclusions from this container in relation to quantities. As with all of this evidence, I do rely on it to indicate that there had been a large scale methamphetamine manufacturing operation.
[52] In noting this evidence, in barest outline, I have not overlooked the evidence from Mr Sims’ police interview. In the interview he said he had been involved in manufacturing methamphetamine for a number of years and that he had, in effect, a passion for collecting chemical equipment. I accept, in Mr Sims’ favour, that his culpability in respect of the present offences is not to be assessed by seeking to try to make some sort of quantification from this very large amount of equipment and other material. And the sheer quantity of material has no material bearing on the quantities to be assessed against any of the offenders. Its significance relates broadly to capacity to manufacture.
[53] The evidence establishes that Mr Sims was an experienced methamphetamine cook. This is based in part on his statement to a police officer. There is no evidence to contradict what he said and what may be inferred from what he said as to his experience. The conclusion that he had a good deal of experience is reinforced by the extent of the clandestine laboratory that was found at his home.
Conclusion
[54] The central issue is: what was the quantity of methamphetamine manufactured on the four occasions?
[55] I am satisfied, beyond reasonable doubt, that the total of methamphetamine manufactured on the four occasions weighed at least 300 grams. This is based on the quantity of 75.4 grams found on 11 June, a conclusion that this is the minimum that was manufactured at the motel that night, coupled with a conclusion that at least similar quantities were manufactured on the three earlier occasions. The conclusion that at least similar quantities were manufactured on the three earlier occasions is based not only on the quantity found on 11 June, but on all of the other evidence as to the overall scale of the operation.
[56] The question then is whether I am satisfied beyond reasonable doubt that the total was substantially more than around 300 grams. The purpose of the analysis is, of course, to determine, so far as possible, as to which band of Fatu this offending comes into and where within that band the offending comes. This does not require proof beyond reasonable doubt of a precise quantity. However, I proceed on the basis that, if I am rejecting a maximum quantity reasonably contended for the offenders, I must be satisfied beyond reasonable doubt that the quantity is materially more.
[57] In this case it is understandably argued for the offenders that a reasonably precise calculation can be made taking the 75.4 grams as the maximum that would have been manufactured on each of the four occasions. In recording that argument (advanced by some counsel) I have not overlooked submissions to the effect that the total is less than 300 grams.
[58] I am not satisfied beyond reasonable doubt that the total of methamphetamine was around 2.3 to 2.7 kilograms, being the quantity based on Dr Coxon’s formula. The reasons were effectively recognised by Dr Coxon herself and by Ms Yelavich in her submission for the Crown. In addition, various calculations relating to toluene may be made which might indicate that Dr Coxon’s formula simply has too many
variables to provide any sort of guide. For example, as Ms Dyhrberg pointed out, Mr Tang obtained 60 litres immediately before the fourth occasion of manufacturing and it appears that all 60 litres were probably used. If the 75.4 grams was the total production, that means that one litre of toluene produced only 1.25 grams of methamphetamine, compared with Dr Coxon’s formula of one litre producing around nine grams of methamphetamine. The result would be even lower if allowance is made for the use of toluene at both stages.
[59] However, and contrary to submissions for the offenders, an assessment based on toluene consumption cannot be ignored. This is part of the whole body of evidence I have been referring to, and I do consider it is an important part. Coupled with the conclusions of fact on toluene that I have already recorded, it is relevant to note some further matters.
[60] I proceed on the basis that when methamphetamine was illegally manufactured by these offenders, more toluene possibly was used to produce a given amount of methamphetamine than was required by Dr Coxon to produce the same amount of methamphetamine in a controlled laboratory environment. It is possible that substantially more toluene was used by the offenders than was used by Dr Coxon to produce similar amounts of methamphetamine. This would be for a variety of reasons noted not only in defence submissions but in Dr Coxon’s evidence. One of these factors is inexperience. However, although Mr Tang and his assistants may have been inexperienced in the manufacture of methamphetamine (or at least they are entitled to the benefit of the doubt in that regard) this does not apply to Mr Sims.
[61] I am prepared to assume, giving the benefit of the doubt to the offenders, that they would have sought to maximise the quantity of methamphetamine produced and for that reason may have repeated the toluene process in one or both of the stages to extract further amounts of methamphetamine. This may have been repeated more than once. The cost of the toluene in relation to the value of the methamphetamine would readily justify a degree of repetition and, in consequence, use of substantially more toluene than indicated by Dr Coxon’s experiment. On the other hand, I infer that toluene would not have been used in uncontrolled volumes. That observation applies particularly to the use of toluene by Mr Sims, because of his experience as a
cook. But it also applies to Mr Tang. He was regularly pressing for further supplies from which an inference can be drawn that he would not use toluene unnecessarily.
[62] As Dr Coxon confirmed, if these offenders used double the quantity she used, the total produced on her overall formula would be around one kilogram for the 280 litres of toluene. To the extent that these calculations assist, if toluene was to be used as the primary guide the overall result would have to be adjusted upwards because the 280 litres of toluene obtained and used by Mr Tang related to only half of the manufacturing process. Mr Sims had his own substantial supplies of toluene, and in fact supplied Mr Tang on three occasions.
[63] The weight of the evidence in my judgment indicates that the total of methamphetamine manufactured on the four occasions may have put this offending well into band 4 of Fatu; that is to say, very large commercial quantities of 500 grams or more. But I am unable to come to that conclusion beyond reasonable doubt. I am nevertheless satisfied beyond reasonable doubt that the total quantity was materially more than 300 grams, a total based solely on the amount that was found at the motel. This is a conclusion founded, as I have emphasised several times, on the full body of evidence.
[64] My overall conclusion is that this offending, in respect of the four occasions of manufacture, is between the middle and the top of band 3 of Fatu; that is to say,
375 grams or more in total.
Peter Woodhouse J
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