R v Yeh
[2007] NZCA 580
•14 December 2007
ORDER PROHIBITING PUBLICATION OF JUDGMENT OR THE REASONS THEREFOR IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY ACCESSIBLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.
IN THE COURT OF APPEAL OF NEW ZEALAND
CA468/07
CA469/07
CA470/07
CA471/07CA472/07 [2007] NZCA 580
THE QUEEN
v
CHU-WANG YEH JUNWEI REN
LU JING WANG CHU HENG CHENG ZHI TONG ZHAN
Hearing: 21 November 2007
Court: Hammond, John Hansen and Miller JJ Counsel: B J Horsley for Crown
P F Wicks for Respondents Yeh and Zhan
S J Bonnar for Respondent Ren
R M Mansfield for Respondent Wang
S J Lance for Respondent Cheng
Judgment: 14 December 2007 at 10 am
JUDGMENT OF THE COURT
R V YEH AND ORS CA CA468/07 14 December 2007
A. The Solicitor-General’s application for leave to appeal is granted.
B. In relation to the search of the car the appeal is allowed and the evidence is admissible.
C. In relation to the search of Mr Ren and the apartment the appeal is dismissed.
D.An order is made prohibiting publication of this judgment or the reasons therefor in news media or on the internet or in any other publicly accessible database until final disposition of trial. Publication in law report or law digest permitted.
REASONS OF THE COURT
(Given by John Hansen J)
[1] The Crown seeks leave to appeal against a pre-trial ruling of Courtney J pursuant to s 344A of the Crimes Act 1961, ruling as inadmissible evidence obtained from three searches conducted on 11 February 2006.
Background
[2] Just before 4 a.m. on that day, Sergeant O’Neill, and Constables Fischer and Arapai were conducting licensing checks in the general area of the Auckland Casino. The sergeant and Constable Fischer were proceeding on foot from the Dispensary Bar to the Palace Bar, with Constable Arapai following in a police van. As they approached that bar they observed a white Mitsubishi vehicle double-parked on Federal Street. The driver was Mr Cheng. Although there was some dispute as to the exact sequence of events, another respondent, Mr Zhan, was near the Palace Bar and described as looking “nervous” at the approach of the police officers. He ran to the car and opened the passenger door, saying “Go, go.” All three police officers approached the car. Mr Cheng was asked by the sergeant to get out of the vehicle
and to produce his driver licence. The sergeant gave evidence he was aware of intelligence information suggesting Mr Cheng was a member of a Taiwanese gang involved with methamphetamine dealing. Mr Cheng was described by the police officers as nervous, anxious and fidgety, with glazed eyes and constantly licking his lips. Constable Fischer gave evidence of Mr Zhan presenting in a similar way but he was also said to be emaciated. There was evidence that such appearance is consistent with methamphetamine use.
[3] As a consequence, Sergeant O’Neill determined to invoke his search powers under s 18(2) and (3) of the Misuse of Drugs Act 1975. He believed he had reasonable grounds to do so based on the time, the location, Mr Zhan’s actions, the information suggesting Mr Cheng was involved with a gang dealing in methamphetamine, and Mr Zhan’s physical features suggestive of long-term methamphetamine use. We note that Sergeant O’Neill previously had extensive experience with the Drug Squad.
[4] The search revealed a crushed glass methamphetamine pipe, a parcel containing a snaplock bag of pink and yellow granules, along with a cellphone, an electronic access card marked “8 L4 Shed 19” and a key. The granules were believed to be pseudoephedrine sufficient to produce 90 to 120 grams of methamphetamine. The street value of this amount of methamphetamine is in dispute, but is clearly significant. During the search of the vehicle a cellphone in the driver’s door compartment rang five or six times, which the sergeant suspected was a pre-arranged call to confirm the success of a deal.
[5] Following the search of the car, Messrs Zhan and Cheng agreed to accompany the police to Mr Zhan’s apartment, which was searched. Nothing of relevance was found. The police database revealed the Mitsubishi vehicle was registered to a Mr Hsu who was believed to be the leader of the Taiwanese drug gang mentioned at [2].
[6] Both men denied knowledge of who resided at the apartment that the access card and key related to. The sergeant formed the view that the apartment would be likely to contain either methamphetamine or pseudoephedrine, and because five or
six cellphone calls had gone unanswered he was concerned the occupants would be alerted and make efforts to dispose of the drugs.
[7] Sergeant O’Neill and Constable Arapai travelled to Shed 19 with the stated intention of speaking to the occupants. The sergeant, in his evidence, was adamant he was not invoking search powers pursuant to the Misuse of Drugs Act. He used the access card found in the car to enter the public foyer of the building. He again used it to take the lift to the fourth level where apartment 8 was situated.
[8] Once they arrived at the fourth floor they saw a man come through secure double doors to the lift foyer. It was Mr Ren. The police gave evidence he was carrying a cardboard box under his arm. He appeared nervous and attempted to conceal its presence. The sergeant gave evidence he could see the box contained snaplock bags similar to those located in the earlier search of the vehicle. He formed the view there was pseudoephedrine or methamphetamine in the box, and invoked s 18(3) of the Misuse of Drugs Act. He explained this to Mr Ren and explained his rights. The search then revealed eight snaplock bags containing pseudoephedrine, unused snaplock bags, keys, a glass pipe and some loose pseudoephedrine granules, as well as some rubbish apparently from a vacuum cleaner.
[9] As a consequence of that search the sergeant concluded that there were drugs in apartment 8. Without knocking, he let himself and the constable into the apartment with the key found in the car. He found Ms Wang, Mr Yeh and another woman. He explained the reason for the police presence and their intention to conduct a search pursuant to s 18(2) of the Misuse of Drugs Act. The police advised the occupants of their rights.
[10] A search of the master bedroom led to the police finding three snaplock bags containing white crystals, plastic funnels, a snaplock bag containing pink and yellow granules, bundles of small snaplock bags, and latex gloves. On the bed was a handbag which Ms Wang admitted belonged to her. It contained around $30,000 in cash, electronic pocket scales, a snaplock bag containing white powder, and an ID in the name of Wang Lu Jing. In the kitchen there were found more snaplock bags and rubber gloves. In a cupboard a vacuum cleaner was found with the dust-bag
containing pink and yellow pseudoephedrine particles. In the kitchen were two mobile phones, with four more in the dining room. Messrs Yeh and Ren identified all but one as belonging to them. Mr Yeh said he lived in the apartment with his wife and Mr Ren admitted he was staying there.
[11] As a consequence the respondents were charged as follows:
(i)Mr Cheng and Mr Zhan: possession of a Class C drug (pseudoephedrine) for supply and conspiracy to supply pseudoephedrine.
(ii)Mr Yeh, Mr Ren and Ms Wang: possession of a Class A drug (methamphetamine) for supply, possession of a Class C drug (pseudoephedrine) for supply and conspiracy to supply pseudoephedrine.
(iii)Mr Yeh and Mr Ren: permitting premises to be used for the purpose of supplying a Class A drug (methamphetamine) and permitting premises to be used for the purpose of supplying a Class C drug (pseudoephedrine).
(iv)Mr Yeh: supplying a Class A drug (methamphetamine) and laundering the proceeds of a drug offence.
Courtney J’s judgment
[12] In relation to the search of the vehicle, Courtney J identified five factors that the Crown relied on cumulatively to provide reasonable grounds on which Sergeant O’Neill could believe the car contained controlled drugs. They were:
(i) The vehicle was in the vicinity of Palace Bar at an early hour in the morning and the Palace Bar was a known location for drug dealing;
(ii)Mr Zhan’s physical appearance was consistent with that of a long- term methamphetamine user;
(iii)Mr Zhan’s body language suggested that he was nervous about speaking with the police and that he was fidgety and had dry lips, both signs of recent methamphetamine use;
(iv)Mr Cheng, the driver, was known to Sergeant O’Neill as an associate of a person of interest to the police in connection with drug-related activities;
(v)Mr Zhan acted suspiciously on seeing the police officers in uniform, running to the car and urging the driver to “Go, go”.
[13] Having considered each of those factors in turn, Courtney J concluded that while the various factors relied on by the Crown justified suspicion, they did not amount to reasonable grounds of belief that would satisfy s 18(2). She ruled the search unlawful.
[14] She categorised the breach as neither minor nor technical. After referring to R v Williams [2007] 3 NZLR 207 (CA) she carried out the necessary balancing act but determined that the alleged offending was not so serious that the exclusion of the evidence would be disproportionate.
[15] In relation to the entry into Shed 19 she found the entry unlawful, a position now accepted by the Crown. She found the locked door was analogous to a locked garden gate, and the presence of an intercom system was a clear sign that the occupants of the building, collectively and individually, had revoked any implied licence that would see any visitor permitted access as far as the door of a particular apartment. She concluded there was no implied licence to enter.
[16] She referred to Sergeant O’Neill’s evidence that he considered the method used to gain entry was a means by which any member of the public might enter the building, and saw nothing wrong in it. The Judge concluded at [65]:
This belief is perplexing; there was no basis on which the police officers could reasonably have believed that they were entitled to use the swipe card to gain entry. Even if the search of the vehicle in which the card was discovered had been lawful, there would have been no basis on which the police could have viewed mere possession of the card as conferring a right to use it.
[17] She considered that the privacy expectation for the common areas of the building was moderate and, while not as high as inside an apartment, the occupants would be entitled to feel a greater degree of privacy and security then they would on the street. She regarded the overall unlawful entry into Shed 19 as more serious than the unlawful search of the car. On a Williams analysis she termed it “moderately serious”. In view of the relatively low level of offending, evidenced by the results of the search, she found exclusion was not a disproportionate response to the breach in question.
[18] In relation to the search of the apartment the Judge found but for the evidence found in the car and the capsules in Mr Ren’s box there would have been no basis for invoking s 18(2) in entering the apartment. Without that evidence the Judge found there were no reasonable grounds for considering that there were drugs in apartment
8. She therefore put that evidence to one side in considering whether the police had reasonable grounds to believe there were drugs in the apartment. She readily concluded that the search of the apartment was unlawful.
[19] Given the nature of the illegality connected with the search the Judge concluded that it should be regarded as unreasonable. She did not consider that it was a minor or technical breach, and accepted the expectation of privacy of the occupiers of the apartment was high. She noted the Crown submission of perceived urgency, but considered a more accurate characterisation was that the officers were over-zealous and allowed their perception of urgency to obscure what were obvious flaws in their course of action. She categorised the breach in terms of Williams as a serious one, but accepted there was a slightly stronger public interest factor in relation to this search, given that the offending was serious.
[20] After referring to [145] of Williams she considered the nature of the breach, involving an unlawful entry into both the building and the apartment was a very
serious intrusion of the accused’s privacy. She found no mitigating factors, and while accepting the offending was serious, concluded it was not of the most serious type for that offending. Again, she found that exclusion of evidence would not be disproportionate to the breaches.
Submissions
The car
[21] The Crown submits that a combination of the factors identified by the Judge was sufficient to give reasonable grounds to believe. While accepting that no factor on its own was strong, taken together it meant there were reasonable grounds to believe there were illegal drugs in the car.
[22] The Crown submitted that even if the factors were not sufficient then, as the Judge accepted, it only fell short by a small margin. On that basis it is submitted that the Judge erred in the balancing exercise as the offending was serious and the privacy interest in the car was low. Further, the evidence was reliable.
[23] However, counsel for Messrs Zhan and Cheng argued that the Judge had reached the correct conclusion in deciding there were no reasonable grounds, because even in combination the factors were too weak to support reasonable belief. Mr Lance also pointed to what he submitted was a changing position taken by the police in relation to what actually occurred in the area of the Palace Bar. He said there was no evidence that either Mr Cheng or Mr Zhan was in the Palace Bar, so reference to it being a known drug-dealing bar was irrelevant.
[24] It was further submitted on their behalf that the Judge correctly carried out the necessary balancing act, applying each step correctly. Further, Mr Lance submitted the alleged $100,000 value of the methamphetamine that could have been produced from the pseudoephedrine was not accepted by the accused, as Sergeant O’Neill was not an expert.
The common area of the apartment complex
[25] In relation to the search of the apartment the Crown position has changed: it now accepts that the use of the swipe card to gain access to the shared areas of Shed
19 was unlawful. However, the Crown submitted the breach was not as serious as the Judge assessed it to be, and the evidence should have been admitted following the balancing exercise.
[26] Mr Horsley submitted that if the Crown argument in respect of the car is accepted, the use of the key becomes the improper use of admissible evidence, rather than the improper use of unlawfully obtained inadmissible evidence. He further submitted that if there was any breach of Mr Ren’s rights, it was minor. He submitted the entry was into a common area of the building where occupiers may have had an expectation of security, but no real expectation of privacy. Mr Horsley submitted the Judge accepted it was a situation of some urgency with insufficient time for the police to seek a search warrant.
[27] The Crown submitted that if the balancing act was conducted on the basis the search of Mr Ren followed a lawful search of the car, and the unlawful entry was seen as improper rather than egregious, then the balancing exercise alters. He said coupled with the urgency of the situation, along with the low expectation of privacy to common areas, to exclude the evidence would be a disproportionate response to the unlawful police presence in the hallway.
[28] However, Mr Bonnar, for Mr Ren, submitted that the Crown had over-simplified the use of the swipe card. He stressed that an hour had passed before the police travelled to the apartment complex, which showed the urgency was not as great as claimed by the sergeant. He further submitted that no enquiries were made during that time as to the possibility of obtaining a search warrant. He submitted the entry must be viewed against the background of the sergeant stating emphatically that he was simply carrying out further enquiries, and had no grounds to believe in terms of the Misuse of Drugs Act.
[29] He submitted it was not a simple entry into a common area. The swipe card initially got the police into the foyer, but it was used again in the elevator and would only allow access to the floor of the apartment occupied by the person who had the right to the swipe card. He submitted it would have needed to be used again to go through double doors from the lift foyer to access the apartment. In fact Mr Ren was coming through the door when the police encountered him.
[30] He submitted there was no implied licence to enter the building and it was therefore unlawful. He submitted that the balancing exercise carried out by Courtney J was correct. He said the offending was low-level, given what was found in the box being carried by Mr Ren, and exclusion was not a disproportionate response.
The apartment
[31] Mr Horsley submitted that taking into account all of the evidence acquired in relation to the car and what was found on Mr Ren, the sergeant then had reasonable grounds to believe that illegal drugs would be found in the apartment, and lawfully entered pursuant to the Misuse of Drugs Act.
[32] Counsel for the occupants of the flat repeated those arguments advanced in support of Mr Ren in relation to the police accessing the building. It was further submitted that without the Ren evidence there were no possible grounds to believe. In terms of the balancing act, the expectation of privacy was very high and therefore the breach was serious. It was submitted that the exclusion of the evidence was not disproportionate to the breach.
Discussion
[33] Section 18(2) and (3) of the Misuse of Drugs Act provide:
18 Search and seizure
...
(2)Where any member of the Police has reasonable ground for believing that there is in or on any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act or any precursor substance specified or described in Part 3 of Schedule 4 and that an offence against this Act has been or is suspected of having been committed in respect of that drug or precursor substance, he, and any assistants who accompany him, may enter and search the building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place and any person found therein or thereon as if authorised to do so by a search warrant issued under section 198 of the Summary Proceedings Act 1957 and by subsection (1) of this section.
(3)Where any member of the Police has reasonable ground for believing that any person is in possession of any controlled drug specified or described in the Schedule 1 or in Part 1 of the Schedule 2 or in Part 1 of the Schedule 3 to this Act or any precursor substance specified or described in Part 3 of Schedule 4 and that an offence against this Act has been or is suspected of having been committed in respect of that drug or precursor substance, he may search and detain that person for the purpose of search and may take possession of any controlled drug or precursor substance found. Nothing in this subsection shall limit the provisions of subsections (1) and (2) of this section or authorise any member of the Police to enter and search any building, aircraft, ship, hovercraft, carriage, vehicle, premises, or place otherwise than in accordance with the provisions of those subsections.
[34] In R v Laugalis (1993) 10 CRNZ 350 at 355 and 356 (CA) this Court described it as a power of particular importance where drugs were believed to be in a motor vehicle, since it would be absurd to require a warrant when the vehicle could simply be driven away.
[35] The pre-requisite for search is a reasonable ground for believing, which
Hardie Boys J described in Laugalis at 354 as:
The qualifier “on reasonable grounds” introduces an objective element which somewhat confines the relevant dictionary meaning of “believe”, namely “to have confidence or faith in, and consequently to rely upon … to give credence to” (Shorter Oxford English Dictionary).
[36] In this case Courtney J identified the individual factors relied on by the Crown to establish that the police had reasonable grounds to suspect there were drugs in the car. Having considered those factors she concluded by saying at [42]:
While the various factors relied on by the Crown certainly justified suspicion, I conclude that they did not amount to reasonable grounds for belief that would satisfy s18(2). The search of the car was therefore unlawful.
[37] In our view this case required a standing back by the Judge and consideration of all of the factors in combination to determine whether or not there were objective grounds for believing there were drugs in the vehicle. The Judge mentioned the Crown relied on the relevant factors cumulatively at [34]. We are quite satisfied, looking at those factors in combination, that there were reasonable grounds to believe. Such a combination of factors was sufficient to give the police “confidence or faith in” the presence of drugs.
[38] In relation to the evidence obtained from the search of the car, leave to appeal is granted, the appeal is allowed, and the evidence is admissible.
Shed 19
[39] While accepting that it was proper for the police to carry out a consensual search of Mr Zhan’s apartment, it is obvious that the situation could not have been as urgent as Sergeant O’Neill alleges in his evidence. If that was the case he would have tasked other officers to carry out the search of Mr Zhan’s apartment, or to go to Shed 19.
[40] Furthermore there was no evidence from the sergeant of efforts made by him to enquire whether or not a search warrant could be obtained as a matter of urgency. In any event he would have faced difficulties obtaining such a warrant based on his own evidence that, even with the information obtained from the search of the vehicle, he did not have reasonable grounds in terms of the Misuse of Drugs Act to carry out a search of the apartment.
[41] Notwithstanding our ruling in relation to the car, we concur in Courtney J’s analysis of what occurred at the apartment building and her findings that the evidence obtained from those two searches is inadmissible.
[42] Although the unlawfulness of the entry is now accepted, we agree with the
Judge’s analysis at [63] where she stated:
The purpose of the doctrine of implied licence is to facilitate communication, no more. The Police were clearly (and, it turns out, justifiably) concerned that alerting the occupants of Apartment 8 would result in evidence being destroyed or disposed of before they could gain access. The law, as I have found it to be, would force the police officers to wait on the street until they are invited to enter, assuming that they ever are invited to do so. Clearly, this situation is very unsatisfactory from the point of view of the police. However, unsatisfactory as the situation may be I cannot see any grounds for applying the doctrine more widely. The fact that the main doors are locked as a matter of course and an intercom system can be readily accessed makes it absolutely clear that individual occupants have not granted any licence beyond the use of the intercom system. There was, therefore, no implied licence that permitted the police to enter Shed 19 using the swipe card. Entry to Shed 19 was unlawful.
[43] We also concur in her finding that Sergeant O’Neill’s belief that there was nothing wrong in entering the building in this manner was perplexing.
[44] In the common area the expectations of privacy were not at their highest. But there was an escalating level of expectation from the use of the swipe card. The lowest level would be the accessing of the foyer. A higher level would apply to the use of the lift, as the swipe card gives only occupants the ability to access their own floor. We are satisfied that the expectation is higher than that contended for by the Crown.
[45] Given that the sergeant accepted he had no reasonable grounds to believe in terms of the Misuse of Drugs Act, the proper course was to use the intercom. The front door, after all, was properly characterised by Courtney J as analogous to the front gate. The presence of the intercom made it clear that lawful entry required a visitor to call the relevant apartment. The matter was exacerbated by the use of the card to access the relevant level of the apartment, where there were higher expectations of privacy.
[46] Improperly obtained evidence is now governed by s 30 of the Evidence Act
2006, which reads:
(1)This section applies to a criminal proceeding in which the prosecution offers or proposes to offer evidence if—
(a)the defendant or, if applicable, a co-defendant against whom the evidence is offered raises, on the basis of an evidential foundation, the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue; or
(b)the Judge raises the issue of whether the evidence was improperly obtained and informs the prosecution of the grounds for raising the issue.
(2) The Judge must—
(a)find, on the balance of probabilities, whether or not the evidence was improperly obtained; and
(b)if the Judge finds that the evidence has been improperly obtained, determine whether or not the exclusion of the evidence is proportionate to the impropriety by means of a balancing process that gives appropriate weight to the impropriety but also takes proper account of the need for an effective and credible system of justice.
(3)For the purposes of subsection (2), the court may, among any other matters, have regard to the following:
(a)the importance of any right breached by the impropriety and the seriousness of the intrusion on it:
(b)the nature of the impropriety, in particular, whether it was deliberate, reckless, or done in bad faith:
(c) the nature and quality of the improperly obtained evidence: (d) the seriousness of the offence with which the defendant is
charged:
(e)whether there were any other investigatory techniques not involving any breach of the rights that were known to be available but were not used:
(f)whether there are alternative remedies to exclusion of the evidence which can adequately provide redress to the defendant:
(g) whether the impropriety was necessary to avoid apprehended physical danger to the police or others:
(h)whether there was any urgency in obtaining the improperly obtained evidence.
(4)The Judge must exclude any improperly obtained evidence if, in accordance with subsection (2), the Judge determines that its exclusion is proportionate to the impropriety.
(5)For the purposes of this section, evidence is improperly obtained if it is obtained—
(a)in consequence of a breach of any enactment or rule of law by a person to whom section 3 of the New Zealand Bill of Rights Act 1990 applies; or
(b)in consequence of a statement made by a defendant that is or would be inadmissible if it were offered in evidence by the prosecution; or
(c) unfairly.
(6)Without limiting subsection (5)(c), in deciding whether a statement obtained by a member of the police has been obtained unfairly for the purposes of that provision, the Judge must take into account guidelines set out in practice notes on that subject issued by the Chief Justice.
[47] In Williams at [150] this Court stated:
We do not consider that anything we have said with regard to the balancing exercise conflicts with the new Act. Indeed, the guidance we have provided should assist trial Judges in determining the weight and relevance to be given to each statutory factor in the circumstances of a particular case.
[48] It follows that Courtney J’s Williams balancing approach remains the correct way to consider the admissibility of this evidence.
[49] There was a moderately serious breach in entering the apartment building, escalated by using the swipe card to access the relevant level. In this case the level of offending, from what was found in the search, is low and we do not consider it serious in the Williams sense (see at [135]). Given the seriousness of the breach and the low level of offending we agree with Courtney J that the exclusion of the evidence seized would not be a disproportionate response.
[50] From that it necessarily follows that the use of the key to access the apartment was a serious breach. The expectations of privacy within the apartment were obviously high. The search involved a significant intrusion into the privacy of
those respondents. It is accepted that there was no discussion or request for permission to search the apartment. The sergeant simply invoked his powers under s 18(2) of the Misuse of Drugs Act and conducted a search.
[51] In the circumstances we concur with Courtney J that this was properly characterised as an over-zealous officer allowing his perception of urgency to obscure what were flaws in his course of action.
[52] Clearly there were stronger public interest factors in relation to this search than that of Mr Ren. The presence of snaplock bags, gloves, scales, cellphones and cash was indicative of commercial operation. It is accepted the evidence is reliable and crucial and the offending is serious. However, the circumstances of the search of the apartment are of a type described by this Court in Williams at [145]:
By contrast, if the illegality or unreasonableness is serious, the nature of the privacy interest strong, and the seriousness of the breach has not been diminished by any mitigating factors such as attenuation of causation or a weak personal connection to the property searched or seized, then any balancing exercise would normally lead to the exclusion of the evidence, even where the crime was serious. This result would be almost inevitable where the breach was deliberate, reckless or grossly careless on the part of the police (see Shaheed at paras [148] – [149]).
[53] On the application of the necessary balancing factors we concur in the conclusion of Courtney J that the exclusion of the evidence seized in the apartment would not be disproportionate to the very serious breach of rights involved.
[54] For the sake of completeness we refer to that section of Williams dealing with the seriousness of offending as a balancing factor. At [135] this Court stated:
As a guideline, an offence can be considered serious if the sentencing starting point (in the sense the term is used in R v Taueki [2005] 3 NZLR
372 at para [8]) for the relevant accused is likely to be in the vicinity of four
years’ imprisonment and over. This would have to be assessed on the basis of the Crown case. An offence could also be seen as serious, even if the likely penalty was less, if the offence involved a threat to public safety, such as the carrying of a loaded weapon in public. The more serious the offence, the more weight it has. It has been suggested that there has been a more benign attitude in the Courts to drug offences because they are “victimless” crimes. We consider that any benign attitude to drug offences has usually been where there has been low-level cannabis cultivation (see, for example, R v Hjelmstrom (2003) 20 CRNZ 208 (CA) at para [20]). We make it clear, however, that we do not see drug offences as victimless crimes. Even where
no specific victim can be identified in relation to the specific offending, potential individual victims exist and society at large suffers.
[55] There is a suggestion in the decision of Courtney J, and in the submissions on behalf of the respondent, that any offence likely to attract a sentence of imprisonment of less than four years is not serious. That is to overstate the effect of Williams. A lengthy term of imprisonment for the offending is a proper element to take into account in ascertaining seriousness of offending. But there are other factors to be considered. As can be noted from [135] of Williams, any thought that there should be a benign attitude to drug offences is incorrect. It is proper for a Court, in carrying out the balancing act and determining the seriousness of the offence, to take into account the pernicious nature of certain types of offending and the consequences arising from that. In relation to methamphetamine dealing that has frequently been commented upon. While the four-year period mentioned in Williams is a useful guideline, it should not be applied as a mathematical formula. The ascertainment of the level of seriousness of the offending requires a consideration of all surrounding circumstances, as Williams makes clear.
Result
[56] The Solicitor-General’s application for leave to appeal is granted. In relation to the search of the car the appeal is allowed and the evidence is admissible. In relation to the search of Mr Ren and the apartment the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington
Swarbrick Beck, Auckland for Respondent Yeh
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