Simon v The Queen
[2017] NZCA 277
•3 July 2017 at 10 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA210/2017 [2017] NZCA 277 |
| BETWEEN | GREGORY SIMON |
| AND | THE QUEEN |
| Hearing: | 24 May 2017 |
Court: | Asher, Venning and Ellis JJ |
Counsel: | M B Meyrick for Appellant |
Judgment: | 3 July 2017 at 10 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Asher J)
After a jury trial presided over by Judge Menzies concluding on 7 April 2017 the appellant, Gregory Simon, was convicted of:
(a)driving while disqualified;
(b)possession of equipment with intent to manufacture methamphetamine;
(c)possession of a precursor substance with intent to manufacture methamphetamine; and
(d)possession of methamphetamine.
During trial Mr Simon had also pleaded guilty to:
(a)failing to stop for police;
(b)careless driving; and
(c)a further charge of possession of methamphetamine.
Mr Simon was found not guilty in respect of a charge of supply of methamphetamine. He was sentenced by Judge Menzies on the same day (having waived a pre‑sentence report) to a total of 32 months’ imprisonment.[1] He appeals both conviction and sentence. Because it is relevant to the sentence appeal we tabulate the charge outcomes and sentencing:
[1]R v Simon [2017] NZDC 7444.
| Charge | Result | Maximum penalty | Sentence given | |
| 1 | Driving while disqualified (third or subsequent) | Guilty (verdict) | Two years’ imprisonment or $6,000 fine; and mandatory one year disqualification (s 32(4) Land Transport Act 1998 (LTA)) | Two months’ imprisonment (concurrent) and one year disqualification |
| 2 | Failing to stop (third or subsequent) | Guilty (plea) | Three months’ imprisonment and mandatory one year disqualification (s 52(4) LTA) | One year disqualification (cumulative) |
| 3 | Careless driving | Guilty (plea) | $3,000 fine and discretionary disqualification (s 37(2) LTA) | Convicted and discharged |
| 4 | Possession of equipment or material with intent to manufacture methamphetamine | Guilty (verdict) | Five years’ imprisonment (s 12A(3)(b) Misuse of Drugs Act 1975 (MODA)) | 32 months’ imprisonment (concurrent) |
| 5 | Possession of precursor substance with intent to manufacture methamphetamine | Guilty (verdict) | Five years’ imprisonment (s 12A(3)(b) MODA) | 32 months’ imprisonment (concurrent) |
| 6 | Possession of methamphetamine | Guilty (plea) | Six months’ imprisonment or $1,000 fine (s 7(2)(a) MODA) | One months’ imprisonment (concurrent) |
| 7 | Supplying methamphetamine | Not guilty (verdict) | 20 years’ imprisonment (s 6(2) MODA) | Discharge on basis of not guilty verdict |
| 8 | Possession of methamphetamine | Guilty (verdict) | Six months’ imprisonment or $1,000 fine (s 7(2)(a) MODA) | One months’ imprisonment (concurrent) |
The charges arose following Mr Simon’s apprehension by the police while driving at night in Hamilton on 31 July 2015. Mr Simon was disqualified from driving at that time. The police noticed Mr Simon cut a corner and attempted to stop him. Mr Simon accelerated away and was only stopped by road spikes after a lengthy high-speed chase of about 20 minutes at speeds of up to 140 km/h. After all four of his tyres were punctured by the spikes he continued to drive on at speed until he crashed into an embankment.
During the pursuit a number of items were observed to be thrown out of the vehicle by the driver. The items thrown out included a portable camping stove, a butane can, and a black laptop bag containing zip-lock bags, a neoprene face mask and cell phone chargers.
When his car could go no further, Mr Simon attempted to flee on foot but was caught by the police. He was found to be carrying a zip-lock bag containing a small amount of methamphetamine and $3,040 cash. When the police ultimately searched his car they found between 1.5 and 1.8 grams of methamphetamine, a further $2240 in cash, a small set of digital scales, three mobile phones, a scanner and a two-way radio.
Mr Simon gave evidence at the trial. He stated that on the night in question he had visited a friend named Wendy. When he arrived at her address she was not home. Another man known as “Tatman” was there and let him in. This man asked if he could borrow Mr Simon’s car and Mr Simon reluctantly agreed to this. When he came back he told Mr Simon that there were items in the car and asked Mr Simon to deliver them to another address. So Mr Simon looked in the car and rearranged some of the items. He then left the address and went to a local petrol station and purchased petrol and cigarettes. While driving after this he was intercepted by the police and the chase commenced.
The appeal against conviction
The appeal against conviction is put forward on the sole ground that there was an error in the summing-up and in the question trail when the Judge referred to “potential control” as being sufficient to prove possession. The issue was raised with the Judge following the summing-up by defence counsel, Mr Meyrick. The Judge indicated that he was comfortable with the wording and that it was a standard direction, and did not change it.
In the question trails relating to charges 4, 5 and 8 the Judge, having set out the requirement for the Crown to prove possession, stated:
To have possession of an item a person must:
(a) be aware of where the item is; and
(b) have actual or potential control over the item; and
(c) have an intention to exercise that control.
He dealt with the concept of possession at some length in his summing-up. Referring to parts of the question trail quoted above relating to possession, the Judge said:
[25] What is in the blue type is to give you some assistance in making an assessment about possession. So in order to have possession, a person must be aware of where the item is, have actual potential control over the item and have an intention to exercise that control. There are some concepts in there that on the face of it look quite straightforward but sometimes they are not as straightforward as they first appear.
[26] A common example that is given to juries in this sort of situation is simply to take an everyday item like a pen. If I were to hand that pen to the registrar sitting in front of me and with agreement that the registrar can use the pen, then I would cease to have it in my physical possession. It would be in the physical possession of the registrar. It is however circumstances in which at any time I could ask for its return so I am intending to exercise some control over it.
[27] That is the sort of situation to give you an example. When I have got it in my hands I have got it in my possession. If I part with that possession and give it to the registrar in this example, the registrar can do what she likes with it in the interim period so she has got a measure of control over it as well but I would have potential control over it because at any particular time I can say, “I want it back.” Therefore I am entitled to have it back. Had I said to the registrar, “You can keep it for good,” then I would have no intention to exercise control over it. So that is just a very simple, everyday example of an everyday item to give you an idea or hopefully some assistance as to how you apply the concepts of possession that are described there.
(Emphasis added.)
Discussion
There is precedent for the use of the phrase “potential control”. Its use in New Zealand appears to stem from the decision of this Court in R v Cox.[2] It was stated by Hardie Boys J:[3]
Possession involves two, not three, elements. The first, often called the physical element, is actual or potential physical custody or control. The second, often described as the mental element, and which may be called the element of mens rea, is a combination of knowledge and intention: knowledge in the sense of an awareness by the accused that the substance is in his possession … and an intention to exercise possession.
[2]R v Cox [1990] 2 NZLR 275 (CA). Prior to R vCox there was a reference to a “potential measure of control” in the oral judgment of Henry J in Bushell v Police HC Gisborne M13/86, 27 May 1986.
[3]R v Cox, above n 2, at 278.
The Court’s use of the word “potential” was perhaps a result of its reference to the English case of R v Warner, in which the House of Lords cited the definition of possession that is in the Dictionary of English Law (Earl Jowitt) (1959).[4] The definition quoted is as follows:
POSSESSION, the visible possibility of exercising physical control over a thing coupled with the intention of doing so, either against all the world, or against all the world except certain persons. There are, therefore, three requisites of possession. First, there must be actual or potential physical control. Secondly, physical control is not possession, unless accompanied by intention; hence, if a thing is put into the hand of a sleeping person, he has not possession of it. Thirdly, the possibility and intention must be visible or evidenced by external signs, for if the thing shows no signs of being under the control of anyone, it is not possessed …
(Emphasis added.)
[4]R v Warner [1969] 2 AC 256 (HL) at 265.
The remarks in R v Cox were in an oral judgment declining leave to appeal. The point about “potential” physical custody or control was obiter as the decision turned on the defendant’s intention to supply the drug. The decision has been cited on a number of occasions in this Court, although the use of the word “potential” has not been examined.[5] However, it has also been questioned in the High Court on the point of whether potential control is enough.[6]
[5]See for example R v Nieuwenhuiysen [2013] NZCA 207 at [12]; R v D (CA287/2010) [2011] NZCA 69 at [65]; and Rei v R [2012] NZCA 398, (2012) 25 CRNZ 790 at [38].
[6]Smith v Police (1994) 11 CRNZ 294 (HC) at 295–296.
The legal aspects of possession are well understood. Possession involves both physical and mental elements. They have been discussed by this Court in many decisions.[7] The physical element is satisfied either by custody of the item in question or control of it. The mental element involves knowledge of the presence of the item, and an intention to exercise control over it.
[7]See for example Bennett v R [2016] NZCA 170 at [19]; and Moon v R [2017] NZCA 56 at [35].
Custody may indicate control but custody is not determinative of possession as custody may be innocent.[8] Conversely, a lack of custody does not necessarily mean a lack of control, as control of an item can be exercised by directions to another. Control in this context involves the idea of a person having the power to direct what happens to the object.
[8]See the discussion in Don Mathias Misuse of Drugs (Thomson Reuters, Wellington, 2015) at [1.1.04].
The reference to “potential control”, drawn from R v Cox, has found its way into many standard summings-up and question trails. However, it is far from clear that the way it has been used, and was used by the Judge in this summing-up, is what was intended in R v Cox. In that oral judgment the physical element of possession was referred to as involving “actual or potential physical custody or control”. We agree with the analysis of Tipping J in Smith v Police that it is possible that the Court did not intend the word “potential” to govern the word “control” as well as the word “custody”.[9] It is possible that it was intended that the words be read as though a comma appeared before the words “or control”.
[9]Smith v Police, above n 6, at 297.
In Smith v Police Tipping J was not prepared to interpret R v Cox as equating control with potential control, and nor are we. We agree with Mr Meyrick that it is unhelpful to use the word “potential” in relation to control.[10] As Tipping J observed “it would be better to stick to actual custody and actual control”.[11] The word “potential” in everyday use involves the concept of having or showing the capacity to develop something in the future.[12] In the context of possession of drugs, at its extreme the use of the word “potential” could be seen as including the concept of a defendant having the possible ability to get control of drugs at some time in the future, but not having any actual control at the time of the alleged offence. It would be wrong to convict on that basis.
[10]See also Mathias, above n 8, at [1.1.01] and [1.1.04].
[11]Smith v Police, above n 6, at 297.
[12]Tony Deverson and Graeme Kennedy (eds) New Zealand Oxford Dictionary (Oxford University Press, Oxford, 2005) at 883 defines potential as “capable of coming into being or action; latent”.
As Ms Ewing for the Crown pointed out, the word “potential” may have been used by the Judge with the intention of communicating the concept of a defendant having the ability to control an item, even though it is not directly in the defendant’s custody. As we set out below, we agree, but it is a clumsy word to use to explain such a concept, and it has the alternative meaning we have referred to. In our view its use should be avoided in explaining control. It is better for a judge in summing up to stick to the concept of actual control.
Therefore we accept Mr Meyrick’s submission that the word “potential” should not have been used by the Judge in his summing-up and question trails. However, that is not the end of the matter.
In the part of his summing-up we have quoted above the Judge referred to “actual potential control” and “an intention to exercise that control”. As we have set out, he gave the example of giving a pen to the Registrar. It would have been better if he had used an example drawn from the facts of the case, rather than the notional example relating to a pen. However, the essence of the message given by the Judge was clear and accurate. He explained what he meant by the word “potential” by making it clear that it relates to a defendant handing over custody to a third party while retaining control over the item, with the ability to demand its return.
While not tailored to the fact of the case before him, the Judge’s explanation would have left the jury in no doubt as to what he meant by the use of “potential” and there was no risk of the jury thinking that it would be enough if Mr Simon had the ability to obtain control at some time in the future. That meaning could not be taken from what the Judge said, viewed over the whole three relevant paragraphs of the summing-up.
We also observe that on the evidence it was clear that Mr Simon was in actual control of the items. They were in his sole custody. He was in charge of the car, and his conduct in throwing out the items indicated that he was in control of them. Indeed in evidence he admitted throwing some of the incriminating items out of the car. He did not suggest at the time of his arrest that they belonged to anyone else. In due course his defence had rested on the jury accepting his evidence that he had been an innocent carrier with no prior knowledge of the items. This unlikely story was clearly rejected by the jury, given the verdicts. Mr Simon’s frantic attempt to dispose of the various items was a strong indication of his awareness and control of the items. The Crown case against him can be fairly described as overwhelming.
Therefore, although we accept Mr Meyrick’s particular submission relating to the undesirability of the use of the word “potential”, we do not consider this to be a material error in the summing-up given the explanations given by the Judge, and we consider there is no chance of this having given rise to any miscarriage of justice given the evidence of actual control and custody before the Court.
The conviction appeal therefore cannot succeed.
The appeal against sentence
Mr Meyrick submits that Mr Simon’s sentence of two years and eight months’ imprisonment (32 months) was manifestly excessive. He submits that the sentence should have been no more than two years’ imprisonment.
There was a sentence indication prior to the trial given by Judge Marshall on 24 March 2017. He set a starting point of 20 months’ imprisonment on the drugs charges. The Judge considered that, standing alone, the driving charges could attract a sentence of 12 months’ imprisonment or more. However, applying the totality principle the Judge chose an uplift of seven months. A further one month uplift was applied for the charge of possession of methamphetamine. That brought the Judge to a starting point of 28 months’ imprisonment. The Judge then applied an uplift of four months for Mr Simon’s previous drug and driving convictions. The end sentence was 32 months’ imprisonment. The sentence indication was not accepted by Mr Simon.
The bulk of Judge Menzies’ sentencing involved setting out the sentence indication of Judge Marshall and agreeing with the end sentence of 32 months’ imprisonment. Mr Meyrick submitted that Judge Menzies, when he sentenced Mr Simon, made an error in imposing a sentence of two years and eight months, the same length as the end sentence reached by Judge Marshall. It was submitted that not only was Judge Marshall’s sentence too high, but also that Judge Menzies should have chosen a lower starting point, particularly in the light of the 20 month starting point adopted by Judge Marshall. It was submitted that, following the downgrade of the dangerous driving charge to careless driving since the sentencing indication, the uplift for the driving charges should have been no more than three and a half months. Mr Meyrick submitted that the starting point for the lead charge of possession of equipment should have been 20 months with no uplift for the precursor substance charge, no uplift for the possession of methamphetamine charge, an uplift for disqualified driving of one month, and an uplift for previous convictions totalling three months: a total of 24 months’ imprisonment.
The way in which Judge Menzies structured his sentencing was that he went through Judge Marshall’s sentence indication, responding to an invitation by both defence counsel and the Crown to adopt that sentence. He noted some differences in the situation he faced with that before Judge Marshall and concluded “I have reviewed Judge Marshall’s assessment of matters and come to the view that the end result that he indicated of 32 months’ imprisonment would indeed be an appropriate way to dispose of all matters today.”[13] He did not set out what those matters were.
[13]R v Simon, above n 1, at [4].
It is not good practice for a judge, sentencing after a trial, to merely adopt an earlier sentence indication that was not accepted by a defendant and had ceased to have effect. As it was, in this Court Mr Meyrick’s sentencing submissions understandably focussed primarily on the sentencing indication of Judge Marshall, given that this is where the primary reasoning of the ultimate sentence was expressed. To address this it became necessary to assess the correctness of the sentence indication. This is not satisfactory given the express prohibition on appeal of sentence indications contained in s 62(5) of the Criminal Procedure Act 2011.
The danger of the practice of effectively following a sentence indication is demonstrated by Mr Meyrick’s submission that Judge Menzies failed to take into account the fact that in working out a starting point Judge Marshall applied an uplift of seven months for the driving charges which, at that time, included a charge of dangerous driving. However, by the time of trial that charge had been reduced to a charge of careless driving. Judge Menzies does not appear to have taken this into account. We agree that this was an error. There should be a fresh sentencing process by a judge after a sentence indication has expired and following a trial, as the judge will be more informed by having actually heard the relevant witnesses, and having heard the evidence. Moreover, the position with respect to charges may have changed.
We accept that the sentence indication decision, although sealed, will be on the file before the judge and it will be artificial for it to be ignored entirely. The judge may wish to cross-check a proposed sentence against the sentence indication. But that indication should not be the basis for the sentence. Given these difficulties we have decided to put to one side the reasoning of the Judge in deciding on sentence, and to assess ourselves what the appropriate sentence would have been.
The lead charges were those of possession of equipment and possession of a precursor substance. As we have mentioned, both charges have a maximum sentence of five years’ imprisonment.
The items thrown from the car or found in the car that could be seen as equipment intended for the manufacture of methamphetamine were: butane canisters, a neoprene face mask, a portable camping stove, a pH testing kit, black insulation tape, a tool bag containing a clear snap-lock box with various methamphetamine utensils, a methamphetamine-stained fry pan and steam distiller lid, a blue carry bag containing a water bottle containing hydrochloric acid, a methamphetamine-stained lower half of the steam distiller, a backpack containing pH strips and a role of insulation tape (similar to some tape around the pH testing kit). In combination these indicated a somewhat chaotically run clan lab of minor to moderate capacity.
We compare Mr Simon’s offending to the more serious cases of Tufuaku v R and Wilson v R, in which starting points of three years’ imprisonment were adopted.[14] Those cases involved possession of a greater quantity and variety of equipment and substances than in the present case. In Tufuaku the offending was described as “serious offending, towards the upper end of the scale”.[15] In Wilson the volume and value of the items and substances found was substantial and indicated “a significant degree of commerciality”.[16] We consider that the case is more comparable to Malamatenios v R and R v Johnston in which starting points of two years and two and a half years respectively were applied.[17] In Malamatenios the appellant was found in possession of hydrochloric acid, pseudoephedrine, a “Parr bomb”,[18] glassware pumps and pH meters. This is suggestive of a manufacturing operation of a similar scale to the present case. In these circumstances it is our assessment that a starting point of around two years’ imprisonment was appropriate.
[14]Tufuaku v R [2015] NZCA 251; and Wilson v R [2011] NZCA 197.
[15]Tufuaku v R, above n 14, at [6].
[16]Wilson v R, above n 14, at [10].
[17]R v Johnston CA448/05, 16 May 2006; and Malamatenios v R [2013] NZCA 347.
[18]As explained by the Court in Malamatenios v R, above n 17, at [4]: “A Parr bomb is a metal reaction vessel to which chemical ingredients are added and in which methamphetamine is manufactured. The reaction occurs under pressure within the ‘bomb’.”
An appreciable uplift was warranted for the driving charges. This was a particularly serious case of failing to stop, thereby causing a lengthy and potentially very dangerous car chase. The defiance of the disqualification, and the attempt to avoid being pulled over by police culminating in the need to use road spikes, were of an extreme category. In our view, given the maximum sentence of two years’ imprisonment for driving while disqualified on a third or subsequent occasion and three months’ imprisonment for failing to stop on a third or subsequent occasion, an uplift of four months’ imprisonment would have been appropriate.
Also, given the serious circumstances relating to the possession of the methamphetamine, the quantity being fairly high and the indications being of extensive consumption, an uplift of one months’ imprisonment for the possession of methamphetamine was appropriate.
This brings us to a starting point of two years and five months’ imprisonment. There is no pre-sentence report, that being waived. There were no mitigating factors. Mr Simon displays no remorse or willingness to change. There was an aggravating factor. Mr Simon has a long list of convictions. In particular we note his convictions in 2009 for possession of methamphetamine for supply and supply of methamphetamine, for which he was sentenced to four years and two months’ imprisonment. There is also an extensive history of serious driving-related convictions, for which he has had previous sentences of imprisonment. This bad record is an aggravating factor. Being careful not to double count for the disqualified driving charge, in our assessment an uplift of four months’ imprisonment was warranted under this head.
The total of all these is two years and nine months’ imprisonment, a little higher than the sentence reached by the Judge.
We therefore will not allow the sentence appeal, the sentence being well within range. We do not impose different sentences for the individual charges from those imposed by the Judge, as they are broadly within range, and given that the end result was satisfactory.
Result
The appeal against conviction and sentence is dismissed.
Solicitors:
Berman & Burton, Auckland for Appellant
Crown Law Office, Wellington for Respondent
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