Te Kira v The Queen
[2014] NZCA 75
•19 March 2014 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA568/2012 [2014] NZCA 75 |
| BETWEEN | JOHN TE KIRA |
| AND | THE QUEEN |
| Hearing: | 10 March 2014 |
Court: | Wild, Goddard and Clifford JJ |
Counsel: | Appellant in Person |
Judgment: | 19 March 2014 at 2.30 pm |
JUDGMENT OF THE COURT
AAn extension of time in which to appeal the conviction and sentence is granted.
BThe appeals against both conviction and sentence are dismissed.
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REASONS OF THE COURT
(Given by Goddard J)
Introduction
This is an appeal against conviction and sentence. The appellant was convicted at trial on one count of possession of methamphetamine for supply. He was sentenced in the Invercargill District Court on 9 August 2012 on that charge, as well as on three charges of possession of cannabis for sale, to which he had pleaded guilty. Two of those cannabis charges related to offending on 27 May 2011 and 3 August 2011 to which the appellant had earlier pleaded guilty.[1] The third cannabis charge related to broadly the same period in which the appellant was found to be in possession of methamphetamine for supply, namely 18 March to 30 April 2011.
[1]R v Te Kira DC Invercargill CRI-2011-025-1542, 9 August 2012 [Sentencing Notes].
Judge Phillips imposed a total sentence of three years three months’ imprisonment, comprising two years for the methamphetamine offending and a cumulative 15 months on the cannabis charges.
Mr Te Kira has appealed both his conviction for possession of methamphetamine for supply and his overall sentence on all charges. In relation to his appeal against sentence, he contends that he received insufficient discount for his guilty pleas to the cannabis offending and should have been separately sentenced for the May and August 2011 offending at the time he entered his guilty pleas to those charges.
Mr Te Kira was represented by counsel at his trial but appeared on his own behalf at the appeal hearing.
Background facts
Methamphetamine offending
Mr Te Kira went to trial on an indictment containing four counts alleging possession of cannabis for supply, codeine for supply, dihydrocodeine for supply and methamphetamine for supply. As noted, the period specified in the indictment spanned 18 March to 30 April 2011.
Police obtained a warrant for the appellant’s cell phone records and intercepted coded text conversations during the period under indictment indicating that he had been in possession of methamphetamine, codeine and dihydrocodeine and cannabis for supply or sale.
During a subsequent police interview the appellant admitted having discussed cannabis by text message but denied that any of the texts intercepted by police referred to methamphetamine. At trial Detective Boucher gave evidence interpreting one of the text messages as referring to methamphetamine. It is clear from the jury’s verdict that they accepted Detective Boucher’s experience and his expertise in the accurate decoding of this text message.
Mr Te Kira did not give evidence at his trial but one of the persons with whom he had exchanged text messages gave evidence for the defence, to the effect that the conversation in question related to purchasing cannabis and not methamphetamine.
The jury found Mr Te Kira guilty of possession of methamphetamine for supply but were unable to reach a verdict on the charges of possession of codeine for supply and possession of dihydrocodeine for supply. He had pleaded guilty to the charge of possession of cannabis for supply on arraignment at the commencement of trial.
Cannabis offending
Following the interception of Mr Te Kira’s text messages during March and April 2011, police executed a search warrant at his property on 27 May 2011 and discovered cannabis, cash and other drug dealing paraphernalia. On 3 August 2011 police executed a further search warrant and again found cannabis and cash.
Appeal against conviction
Mr Te Kira submitted that the text messages provided an insufficient basis for the jury to have convicted him of possession of methamphetamine for the purpose of supply. The fundamental question is, however, whether the verdict was unreasonable. The threshold for interference with a guilty verdict on the basis of unreasonableness or unsupportability is high.[2]
[2]R v Kuka [2009] NZCA 572 at [75].
The defence, as put at trial, was that the text messages all concerned cannabis and not methamphetamine. This was the effect of the evidence given by the witness called for the defence. Clearly the jury rejected this evidence.
In his handwritten notice of appeal, Mr Te Kira again referred to this defence, explaining:
We were Auctually texting about Canabbis not methanphine, an unfortunately the Jury did not believe it.
At the appeal hearing Mr Te Kira advanced a different argument. He accepted that the conversation interpreted by Detective Boucher did concern methamphetamine supply but submitted that he was the intended recipient of the methamphetamine and not the supplier. He suggested he was being offered methamphetamine in the exchange of texts and thought he was buying it himself for his own use. This suggestion is not only contrary to the defence as advanced at trial, but also at complete odds with the appellant’s police interview, in which he had asserted that the text messages were nothing to do with methamphetamine but were all about cannabis.
Mr Te Kira’s criticism of the verdict was essentially directed to the circumstantial nature of the evidence and implicitly the interpretation Detective Boucher placed upon the text communications.
Bearing in mind that an appellate Court is performing a review function and must give appropriate weight to the advantages the jury may have had in seeing and hearing the witnesses and reviewing the evidence as a whole, the verdict reached by the jury in this case must be regarded as reasonable. The Judge instructed the jury appropriately as to how they should deal with the text message evidence and it is clearly evident that the jury accepted as correct Detective Boucher’s interpretation.
The appeal against conviction is therefore dismissed.
Appeal against sentence
The sentencing Judge adopted a starting point of two years’ imprisonment for the methamphetamine offending. No adjustment was made for personal factors. A starting point of 18 months’ imprisonment was adopted for the cannabis offending. This was uplifted by three months for Mr Te Kira’s previous convictions, with a further three months for the additional cannabis offending. The Judge applied a 10 per cent discount for the guilty pleas, bringing the sentence for cannabis offending down to 21 months’ imprisonment.
Mr Te Kira’s main complaint was that he had been given insufficient credit for the early guilty pleas he had entered to the 27 May 2011 and 3 August 2011 charges. Those charges resulted from two separate searches of the appellant’s property referred to at [10] above. On each occasion police found a number of tinnies and cash. It is the Crown’s case that the guilty pleas in respect of those charges were not entered until shortly before his trial.
The Judge took the 27 May offending, which had yielded the largest number of tinnies, loose cannabis and associated paraphernalia, as the lead offending and identified a starting point of 18 months’ imprisonment as appropriate. Having regard to the appellant’s “atrocious history, a history to the extent of where you just continue to offend”, he imposed a “merciful” uplift of three months’ imprisonment on that starting point.[3] A further uplift “by a minimal amount” of three months, taking into account the fact the Judge was sentencing the appellant “on one for three”, resulted in a sentence of 24 months’ imprisonment.[4] An allowance of 10 per cent for the guilty pleas reduced the sentence to one of 21 months’ imprisonment.
[3]Sentencing notes, above n 1, at [18].
[4]At [19].
In relation to the methamphetamine offending, the Judge identified a two year starting point, to be cumulatively imposed, resulting in a total sentence of three years and nine months’ imprisonment. The Judge was, however, prepared to reduce that overall sentence by six months on a totality basis, which he then did.
Standing back, as the Judge did, and viewing the totality of the appellant’s latest offending in light of the history of similar offending, the totality of the end sentence arrived at cannot be regarded as either manifestly excessive or wrong in principle.
Conclusion
The appeal against conviction was filed six days out of time. The appeal against sentence was filed 74 days out of time. Given the short delay in relation to the appeal against conviction, and given Mr Te Kira was not represented when he filed the appeal against sentence, we extend time to appeal both conviction and sentence.
However, the appeals against both conviction and sentence are dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent