The King v Martin Pritchard Matangikolo Napaa Piukana
[2024] NZHC 3090
•23 October 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2021-004-7913
[2024] NZHC 3090
THE KING v
MARTIN PRITCHARD MATANGIKOLO NAPAA PIUKANA
Hearing: 14 August 2024 (further teleconference 15 October 2024) Appearances:
R Benic and R van Boheemen for Crown S Teppett for Defendant Pritchard
E Priest and P Wilks for Defendant Piukana
Judgment:
23 October 2024
JUDGMENT OF WILKINSON-SMITH J
[Disputed facts hearing]
This judgment was delivered by me on 23/10/2024 at 2.30 pm
Registrar/Deputy Registrar
…………………………………
Solicitors:
Meredith Connell, Auckland S Teppett, Auckland
E Priest, Auckland
R v PRITCHARD & ANOR [2024] NZHC 3090 [23 October 2024]
Introduction
[1] Matangi Piukana and Martin Pritchard have pleaded guilty to charges relating to their roles in a criminal syndicate involved in the importation of methamphetamine through Auckland International Airport (Auckland Airport). Mr Piukana and Mr Pritchard were arrested following a large-scale New Zealand Police and Customs investigation into the offending which involved bypassing Customs inspections with the assistance of baggage handlers who removed consignments of drugs directly from recently arrived aircraft.
[2] Both Mr Piukana and Mr Pritchard have pleaded guilty to importing methamphetamine on the following dates:
(a)9 June 2021;
(b)12 July 2021; and
(c) 31 July 2021.
[3] In addition to the importation charges, Mr Piukana pleaded guilty to a representative charge of conspiring to import methamphetamine between 16 and 21 May 2021, and 20 and 26 October 2021.
[4] Mr Piukana and Mr Pritchard were two of several co-defendants involved in the criminal syndicate. Two co-defendants, Mr Iuvale and Mr Manuel, were found guilty following a jury trial. The remaining co-defendants pleaded guilty to various charges.
[5] The quantum of methamphetamine imported on 12 July 2021 is accepted to be at least 10 kilograms. The parties do not agree on the quantum of methamphetamine imported by Messrs Piukana and Pritchard on 9 June 2021 and 31 July 2021. Mr Piukana’s charge of conspiracy to import methamphetamine between 20 and 26 October 2021 was resolved on the basis that it involved “a significant commercial quantity”. The Crown does not seek a ruling as to quantum in respect of the conspiracy
charge, but the Court must come to some view of quantum for the 9 June and 31 July charges as quantum is relevant to sentence.
[6]A disputed facts hearing took place on 14 August 2024.
The evidence
[7] At the hearing the Crown relied on the evidence of four witnesses who were not required for cross-examination and whose evidence was accepted. In addition, the Crown filed the notes of evidence and photograph booklet from the jury trial involving Mr Iuvale and Mr Manuel.
Hearsay
[8] The Crown also sought to rely on the evidence of Michael Foster who is a New Zealand police officer based in Kuala Lumpur as a Police Liaison Officer. Detective Inspector Foster was posted to Malaysia in January 2021. His duties included liaising with various law enforcement agencies about narcotics trafficking and other transnational organised crime. In Malaysia, Detective Inspector Foster dealt with the Narcotics Crime Investigation Department within the Royal Malaysian Police. In 2021, his main contact in Malaysia was an Assistant Commissioner of the Royal Malaysian Police who held the role of Assistant Director of Intelligence/International Liaison of the Narcotics Crime Investigation Department of the Royal Malaysian Police. That officer was based at Police HQ in Kuala Lumpur. Detective Inspector Foster says that he also had a very strong relationship with the Australian Federal Police based in Kuala Lumpur.
[9] On the morning of 1 November 2021, Detective Inspector Foster received a telephone call from an Australian Federal Police colleague asking if he was aware of a large shipment of methamphetamine that had been seized in Malaysia bound for New Zealand. Detective Inspector Foster made various enquiries and eventually became aware of media articles about 180 packages of methamphetamine said to weigh 200 kilograms found in five boxes. The boxes had been seized at Kuala Lumpur International Airport destined for New Zealand. The media articles referred to the methamphetamine being packaged in Chinese tea packets.
[10] Detective Inspector Foster contacted the Malaysian Assistant Commissioner to seek information. In his formal written statement, Detective Inspector Foster said that the Assistant Commissioner told him that she was sorry that he had not been advised about the seizure and its links to New Zealand; and offered to send photographs of the boxes that the methamphetamine was packaged in as well as the documents relating to the shipment. The Assistant Commissioner advised that four people had been arrested and were being interviewed. The information was provided via WhatsApp message which Detective Inspector Foster said was the preferred communication method of the Malaysian police. Detective Inspector Foster said he often received documents and photographs from the Royal Malaysian Police via WhatsApp.
[11] Detective Inspector Foster then received a further WhatsApp message from the Assistant Commissioner with photographs of boxes at the scene, as well as the air waybill and manifest declaring the goods in the boxes as electronic goods.
[12] The documents showed that the boxes were destined for Auckland Airport on‑board flight MH145. The consignee was PB Technologies, 587 Great South Road, Manukau. The flight was due to arrive at Auckland Airport at 2.50 pm on 23 October 2021. The Assistant Commissioner also forwarded photographs of the open boxes and numerous packages of what appeared to be a white substance packaged in green and gold tea packaging.
[13] Detective Inspector Foster said that from that point on his role was to facilitate a Mutual Legal Assistance request so that information could be “legally shared” between New Zealand Police and the Royal Malaysian Police via the Malaysian Attorney-General’s office.
[14] The Crown applied to admit hearsay statements contained in paras 14 and 16 of Detective Inspector Michael Foster’s statement to prove “that there was a seizure by Malaysian authorities of methamphetamine linked to New Zealand; and that the relevant photos and documentation setting out the consignment details connected to the seizure were provided to DI Foster”.
[15] Paragraphs 14 and 16 of Detective Inspector Foster’s formal written statement read:
14. As a result of reading the media articles I telephone Assistant Commissioner Nasir to seek information about the seizure. I spoke to her in the early afternoon of 2nd November. She said “Sir, I am very sorry that you weren’t told about the seizure and it’s links to New Zealand. I’ll send you the photos of the boxes that the meth was packaged in that was located at the airport as well as the documentation. There were four people arrested and they are still being interviewed so once that’s finished, I’ll let you know how everything went.”
…
16. As a result of speaking with her she immediately forwarded me a WhatsApp message with photographs of the boxes at the scene in situ as well as the Waybill and Manifest declaring the foods in the 5 boxes as ‘electronic goods’.
(bold and italics in original)
[16] The air waybill shows that the intercepted consignment consisted of five boxes with a total weight of 204 kilograms.
[17] Mr Pritchard and Mr Piukana opposed admission of the hearsay statements as to the quantity of methamphetamine intercepted in Malaysia.
[18] At the hearing on 14 August 2024, the Crown was not in a position to provide evidence to support the submission that the Malaysian witness was unavailable. Crown counsel advised from the bar that a request for assistance under the Mutual Assistance in Criminal Matters Act 1992 (MACMA) was unsuccessful.
[19] I granted leave to the Crown to file further evidence as to unavailability but indicated that the admissibility of the evidence would need to be determined.1
[20] On 26 August 2024, the Crown sought an extension of time to 30 August 2024 to file the additional evidence. The extension was opposed by defence but was granted on the papers.
1 R v Piukana HC Auckland CRI-2021-004-7913, 15 October 2024.
[21] On 28 August 2024, the Crown and counsel for Mr Piukana filed a joint memorandum seeking adjournment of Mr Piukana’s sentencing saying that the disputed facts hearing would be instrumental in determining quantum and that both parties had additional enquiries that needed to be undertaken prior to sentencing. I understood that the additional enquiries related to quantum and took the view that none of the defendants could be sentenced until quantum was determined as splitting the sentencings could lead to parity issues. The sentencing hearing for all defendants was adjourned.
[22] I regret that I did not hear from counsel prior to adjourning the sentencing hearings as it transpired that the additional enquiries related to evidence of personal mitigating factors and not to the issue of quantum. That was not apparent from the memorandum filed.
[23] Counsel for Mr Piukana and Mr Pritchard opposed the Crown being given extra time to provide evidence in support of the hearsay application. Concerns were raised that the Crown was being given time to remedy defects in its application.
[24] The evidence filed by the Crown revealed that the MACMA request was declined by letter dated 25 March 2024. Malaysian authorities advised:
In lieu of the aforesaid, given there is an ongoing criminal proceeding before the Malaysian court, the Attorney General of Malaysia have [sic] determined that Malaysia is unable to accede to the Request from the Government of New Zealand at this juncture.
[25] In May 2024, a Detective Senior Sergeant of the New Zealand Police was advised that the MACMA request was unsuccessful, and that Malaysia’s position was “immovable”. Evidence of the MACMA enquiries and the refusal of Malaysian authorities to assist was not provided to the Court or disclosed until 20 September 2024.
[26] Ms Priest, for Mr Piukana, requested disclosure of the Malaysian evidence as early as May 2023. A resolution proposal in November 2023 identified the Malaysian evidence as outstanding and relevant to resolution.
[27] Mr Teppett says that the evidence filed after the disputed facts hearing is not fresh evidence and should have been filed in advance of the hearing on 14 August 2024. He submits that the delay in disclosing the evidence is not linked to any obvious sensitivity in the information.
[28] Mr Teppett also says that, even if the additional evidence of unavailability is admitted, the hearsay evidence itself is insufficiently reliable. There is no evidence that the Malaysian witness was present when the drugs were intercepted or examined. There is no evidence about whether the Assistant Commissioner took the photographs which the Crown seeks to rely on.
[29]The following issues arise in respect of the hearsay evidence:
(a)Should the further Crown evidence as to unavailability of the Malaysian witness be admitted?
(b)Is the threshold test of unavailability met?
(c)Is the reliability test met?
Should the further evidence be admitted?
[30] Information that Malaysian authorities declined the MACMA request was available to the New Zealand Police by May 2024 at the latest. There is no explanation as to why that information was not disclosed to the defence. The information was potentially material to advice about resolution and the basis upon which matters would resolve. The defence certainly knew that the Crown had not disclosed any evidence from Malaysian authorities but did not know that the Crown was unable to obtain that evidence.
[31] Failure to disclose information is a ground for excluding evidence. Section 34 of the Criminal Disclosure Act 2008 provides:
34 Undisclosed information
(1)This section applies if, at the hearing or trial of a defendant, the court is satisfied that—
(a)evidence sought to be adduced by a party is, or is based on, information that should have been disclosed to the other party under this Act; and
(b)that information was not disclosed.
(2)The court may—
(a)exclude the evidence; or
(b)with or without requiring the evidence to be disclosed, adjourn the hearing or trial; or
(c)admit the evidence if it is in the interests of justice to do so.
(3)The court—
(a)must not order the exclusion of evidence sought to be adduced by the defendant (whether of an alibi, as expert evidence, or otherwise) if it appears to the court that the defendant was not given notice in accordance with this Act of the requirements of this Act; but
(b)if paragraph (a) applies, must adjourn the hearing if the prosecution requests an adjournment.
(4)Subject to subsection (3), subsection (2) does not limit the powers of a court under any other enactment or rule of law to deal with any failure by a party to comply with the directions of the court under this Act.
[32] The Crown was permitted to file further evidence regarding the MACMA request because the timing of the information becoming available to the Crown, and any reasons for withholding the information is potentially relevant to admissibility. Had the information only recently become available, or if good grounds were established for withholding the information, further evidence supporting unavailability might well have been admissible.
[33] It is now clear that the police and Crown were aware of the failed MACMA request in March 2024 and further efforts to obtain the information had been exhausted by May 2024. No good reason has been established for the failure to disclose the information.
[34] In those circumstances, I decline to admit evidence filed so late and only at the prompting of the Court. The issue of unavailability falls to be considered on the evidence available at the hearing on 14 August 2024.
Is the threshold test of unavailability met?
[35] For Mr Piukana, it is submitted that being overseas does not render a witness non-compellable. Ms Priest submits that Detective Inspector Foster is based in Kuala Lumpur and could have liaised directly with the Royal Malaysian Police. There is no evidence as to why direct enquiries of the witness were not made.
[36] Ms Priest says that this is not a case where there is evidence of any reasonably diligent efforts to speak to the witnesses. There is no record of any communications or enquiries about witness availability or the ability to obtain statements. There is no admissible evidence disclosed that the Malaysian officials declined to cooperate despite the Crown assertion in its Notice of Application. Ms Priest submits that the threshold test of unavailability is not met.
[37] This same hearsay issue arose in the jury trial of two of the co-defendants in this matter. However, it arose in a different context by way of a very late defence objection as the trial was nearing completion. At the trial, the Crown proceeded on the basis that the interception of drugs in Malaysia was not in dispute. Photographs relating to the interception of the drugs in Malaysia were included in the photograph booklet by consent. Hearsay evidence was admitted at trial to a limited degree but did not relate to the determination of quantum.2
[38] The current issue is different because of the different context of the current application. This is not a late objection to evidence that the Crown reasonably thought was not in dispute. The practicality of obtaining evidence about the failed MACMA request and any other steps taken by the Crown or police to obtain the evidence is not constrained by delays to a jury trial and inconvenience to a jury. Further, additional evidence against Mr Iuvale at trial made the gold tea packaging particularly relevant to the Crown case and the Crown had relied on a lack of objection to the evidence.
[39] In the earlier decision relating to Mr Iuvale, I noted that whether an overseas based witness is unavailable for the purposes of s 18 of the Evidence Act 2006 has been the subject of a number of decisions in the High Court, Court of Appeal, and
2 R v Iuvale [2024] NZHC 2662 at [128].
Supreme Court.3 I set those authorities out in the earlier decision and I do so again below.
[40] In R v Zagros hearsay statements were admitted pursuant to s 18 of the Evidence Act on the basis that a US-based customs liaison officer was unavailable.4 In Zagros the witness was only temporarily unavailable as a witness and would potentially be available via a MACMA request in a matter of months. Gwyn J referred to R v Bechman-Hansen (No 1) where it was said that overseas witnesses are not unavailable because the MACMA provides a “reasonably practicable” way of obtaining the evidence.5 Gwyn J said it was arguable that the delay in obtaining a formal statement via a MACMA request could amount to undue delay and support a finding of unavailability — particularly when a defendant is in custody.6 Regarding the Crown delay in initiating the MACMA process in Zagros, Gwyn J accepted that it was neither necessary nor realistic for the process to be initiated immediately when there was a possibility the defendant might still plead guilty noting that the Crown attempted to obtain the evidence once it was clear the trial would proceed.7
[41] The Court of Appeal in Gao v Zespri Group Ltd ruled a witness’ hearsay statements admissible in a civil trial on the basis that there was sufficient evidence to establish, on the balance of probabilities, that the witness was unwilling to give evidence, was beyond compulsion, and was accordingly unavailable.8
[42] The fact that compellability is difficult to enforce does not make a person unavailable under the Evidence Act.9 The Court of Appeal in Solicitor‑General v X said that everyone is compellable unless they fall within the exceptions in ss 72–75 of the Evidence Act.10 In that case, the Court of Appeal upheld a decision of the District Court that witnesses were not unavailable merely because they resided in China. The prosecution had the contact details of the proposed witnesses and there
3 As discussed at [107]–[115].
4 R v Zagros [2020] NZHC 1919 at [26].
5 R v Bechman-Hansen (No 1) [1997] 1 NZLR 598 (HC).
6 R v Zagros, above n 4, at [24].
7 At [25].
8 Gao v Zespri Group Ltd [2021] NZCA 442, [2022] 2 NZLR 219 at [53]–[54].
9 Solicitor-General v X (CA173/2009) [2009] NZCA 476 at [35].
10 At [35].
was no evidence as to why direct inquiries were not possible, or that the witness was unresponsive. The Court found that the Crown had not discharged the burden of demonstrating that it was not reasonably practicable for the statement maker to be a witness.11
[43] In MT v R the Court of Appeal considered whether witnesses who were in Russia were unavailable for the purposes of s 18 of the Evidence Act.12 The whereabouts of the witnesses was unknown. Police job sheets detailed the steps taken to locate the witnesses including enquiries with the Ministry of Foreign Affairs and Trade (MFAT) which confirmed that the proposed witnesses were not in New Zealand and there was no information as to whether they were in Russia or had been posted to another location. MFAT also confirmed that, given the state of the New Zealand- Russian bilateral relationship, it was unlikely that MFAT would be able to contact the individuals without the assistance of the Russian Embassy or the Russian Foreign Ministry. MFAT confirmed that the Russian Embassy had advised that the witnesses could not be contacted. Police sought assistance from Interpol who sent a request to Interpol in Moscow for the location and contact details of both men but did not receive a response. Further searches were also undertaken on Google, Facebook and Instagram, but those enquiries did not yield any results as to the whereabouts of the two witnesses nor how to contact them.
[44] The Court of Appeal found that the witnesses were unable to be located and were unavailable pursuant to s 16(2)(b) of the Evidence Act but also said:
[20] We also consider there to be merit in the Judge's observation that the evidence might otherwise be admissible under s 18(1)(b)(ii) on the basis that undue expense or delay would result if Messrs Narumov and Popov were required to be witnesses. While the CCTV footage and the signs found at the scene are key evidence, the hearsay statements themselves are unremarkable. No issues of reliability or credibility have been identified by the applicant and no unfair prejudice arises out of the admission of this evidence. Given the efforts already made to locate Messrs Narumov and Popov, the further expense in trying to contact these individuals would appear to be undue.
(footnote omitted)
11 At [37].
12 MT v R [2024] NZCA 32.
[45] The Supreme Court in Haunui v R posed the question of whether compellability for the purposes of s 16(2)(e) is wholly defined by ss 71–75 of the Evidence Act or whether it should be given an expansive interpretation and extend to persons who have a lawful excuse not to give evidence.13 The Supreme Court said the question would need to be addressed in a case in which it would be determinative.14 In the civil context the question was answered in King v PFL Finance Ltd by Kós J who noted the Court of Appeal’s agreement with the relevant commentary that s 16(2)(e) of the Evidence Act allows the Court to treat witnesses who are excused from testifying as unavailable.15 Kós J said:16
By reason of s 16(2)(e) of the Evidence Act, a person is “unavailable as a witness” if the person “is not compellable to give evidence”. We do not consider compellability for the purposes of s 16(2)(e) to be wholly defined by ss 71 to 75 of the Act. Rather, we agree with the commentary in The Evidence Act 2006: Act and Analysis that s 16(2)(e)“may also result in the Court's treating witnesses who are excused from testifying … as ‘unavailable’”.
(footnotes omitted)
[46] Before this Court could reach the conclusion that an overseas witness is unavailable, there would need to be evidence provided of the efforts made to obtain the evidence of the witness through official channels such as a MACMA request and where appropriate, to ascertain whether the witness would be willing to make themselves available on a voluntary basis. I accept that where the witness is a police officer or government official there are real difficulties in approaching the witness if the witness’ government has declined to facilitate a MACMA request. There are likely to be practical and diplomatic consequences of doing so.
[47] At the time of the disputed facts hearing, however, the Crown had simply not done enough to establish unavailability. The material filed subsequently has been excluded on the basis of late disclosure. I understand that MACMA requests are sensitive and involve both the Crown Law Office and the MFAT. However, it is insufficient for the Crown to simply advise the Court from the bar that a MACMA request was refused. There must be evidence about when the request was made and
13 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [36].
14 At [36].
15 King v PFL Finance Ltd [2015] NZCA 517.
16 At [49].
what other steps if any have been taken to obtain the evidence. There also needs to be evidence about why a personal or informal approach to the witness is not possible.
[48] Had sufficient information been filed prior to the disputed facts hearing to establish that all efforts to obtain the evidence of the witness had been exhausted, I would have had little difficulty in finding that the witness, even if technically compellable, was practically unavailable. However, I do not have sufficient admissible information to come to that conclusion. I conclude that the Crown has not established that the witness is unavailable for the purpose of the disputed facts hearing.
[49] As unavailability is a threshold test there is no need to consider the reliability of the hearsay evidence.
Result
[50] The hearsay statements contained in Detective Inspector Foster’s formal written statement are not admissible for the purpose of proving quantum.
The evidence as to quantum
[51] There is no dispute as to quantum in relation to the 12 July 2021 import. That import arrived from a Los Angeles flight and involved a different method of importation. Rather than boxes of cargo, the methamphetamine was contained in a passenger bag. In respect of the 12 July 2021 import, the accepted summary of facts reads that the bag contained at least 10 kilograms of methamphetamine.
[52] The importations on 9 June 2021 and 31 July 2021 involved boxes that arrived in New Zealand as freight. The 9 June 2021 importation involved three boxes with a combined total weight of 113 kilograms. The consignment details were:
(a)Consignor: Thunder Match Technology, Unit C UG 158 Level Upper Ground 1, Cheras Kuala Lum, MY 55100.
(b)Consignee: PB Technologies, 587 Great South Road, Manukau Auckland, New Zealand, NZ 2104.
[53] The 31 July 2021 importation again involved three boxes with a combined total weight of 118 kilograms. The consignment details were:
(a)Consignor: Hygien Supplies SDN BHD, 47 Jalan PJS Taman Petaling Utama Petaling Jaya, Selangor MY 46000.
(b)Consignee: B Smart Living Carringbah, Shop 3 153 Denman Ave, Carringbah N Zealand, NZ.
[54] The consignment details and weight are recorded on the air waybill — a document required to accompany air freight.
[55] The Crown relies on the evidence of Traci Cox, a Menzies Aviation employee and a cargo manager based at Auckland Airport. Ms Cox also gave evidence at Mr Iuvale’s trial.
[56] Ms Cox explained that Menzies can crosscheck freight forwarding messages which contain information about all units of freight and associated air waybills travelling on a flight. She said that the manifest containing all units on a flight is rarely incorrect unless there are genuine loading errors. Hard copy documentation travels on the aircraft. The process for cargo arriving in New Zealand consists of physically unloading the cargo from the aircraft, receiving the cargo documents including the air waybill from the aircraft and transporting the cargo to a cargo terminal operator. The cargo is then split to master air waybill consignments which are checked into a system which reconciles the received cargo against the freight forwarding messages.
[57] Further evidence about air waybills was provided by Myrven Ryding who explained that cargo is weighed to ensure that the weight recorded on the air waybill is correct.
[58] The weight recorded on the air waybills for the 9 June and 31 July importations is relied upon by the Crown as relevant to quantum.
[59] Defence counsel for Mr Piukana and Mr Pritchard submit that it is common for methamphetamine to be concealed in bulkier items. It is not disputed that the three
boxes imported on 9 June 2021 had a total weight of 113 kilograms or that the three boxes imported on 31 July 2021 had a total weight of 118 kilograms. Rather it is said that there is no proof that the total weight of the boxes correlates with the weight of the imported methamphetamine. There is no evidence as to how the methamphetamine was contained in the boxes, whether it was disguised with other bulkier items or whether the entire contents of the boxes were made up of solely methamphetamine (not some other drug or item). Mr Pritchard does not accept that all of the boxes removed from the aircrafts contained methamphetamine.
[60] Both defendants accept that the importations were of a commercial quantity of methamphetamine but say that, for sentencing purposes, that quantity should be identified as 10 kilograms — the amount imported on 12 July 2021.
[61] The Crown says that the 12 July 2021 importation involved a different modus operandi being importation via a passenger bag rather than as freight. Obviously, importation of methamphetamine as freight creates an opportunity to import a larger volume than importation contained in what appears to be personal luggage. Personal luggage weighing over 30 kilograms would attract attention.
[62] The Crown position is that the quantity of methamphetamine imported on 9 June 2021 and 31 July 2021 was closely aligned to the gross weight reflected in the respective manifests/air waybills.
[63] Video of the offending on 31 July 2021 shows a syndicate member offloading three boxes from the plane into a waiting van driven by Mr Pritchard. The three boxes were then removed from Auckland Airport by Mr Pritchard.
Discussion
[64] The starting point for consideration of quantum is the respective air waybills for the June and July importations. The air waybills reveal an average weight across the boxes of between 37.6 and 39.3 kilograms. The video shows that each box is carried easily by one person.
[65] Mr Piukana accepts that on multiple occasions throughout 2021 he organised a crew of baggage handlers to physically remove shipments of methamphetamine. It is also accepted that he stored large amounts of cash, the proceeds of the syndicate’s importation, at the home of his sister and her husband. When a search warrant was executed at Mr Piukana’s house upon termination bundles of cash totalling $24,430 were found. Mr Pritchard was found in possession of $129,538.50.
[66] The only available inference is that the offending was strongly commercially motivated and that those involved were financially advantaged by their involvement.
[67] The defence position is that sentencing should proceed on the basis that less than 10 per cent of the weight of the boxes removed was made up of methamphetamine. I find the defence contention that each consignment contained no more than 10 kilograms to be entirely unrealistic. Even the 12 July 2021 importation is not agreed to be limited to 10 kilograms. The particulars refer to “at least” 10 kilograms. Removing multiple boxes of methamphetamine from an aircraft is intrinsically risky. The idea that each of the boxes removed on the various occasions contained no more than two to three kilograms of methamphetamine, or that some contained no methamphetamine at all, is simply implausible.
[68] It is not uncommon in cases of methamphetamine dealing for the exact quantum to be impossible to ascertain. Considering the circumstances of this case, I am of the view that the amount of imported methamphetamine, whilst not explicitly quantifiable, clearly exceeds the 10 kilograms argued by the defence. This was a sophisticated and layered operation. It required organisers dealing with overseas suppliers; middlemen at Auckland Airport; baggage handlers who removed the drugs; individuals to receive and distribute the drugs; and individuals to hold cash to pay syndicate members.
[69] The Crown position is that the modus operandi of the syndicate was to bypass Customs inspections and that accordingly only a cursory attempt to disguise the goods in other objects would be required. Most of the weight of the boxes would have been made up of methamphetamine. The defence say that this cannot be assumed because
the boxes had to pass potential inspections when loaded and unloaded from the aircrafts. The defence say that there was still utility in concealing the drugs.
[70] The very reason for bypassing customs and bringing the drugs in as freight is to avoid inspection and reduce the need to disguise the drugs. I reject the suggestion that very small amounts of drugs were contained in each box. The documents that must accompany all airfreight means that the number of boxes removed could not be hidden. Every box removed risked potentially attracting suspicion from baggage handlers who were not part of the syndicate. Removing three boxes is more dangerous than removing one box. The only inference I can draw is that the amount of methamphetamine necessitated multiple boxes so that one person could remove it easily and transport it to a waiting vehicle. The amount of methamphetamine imported was too heavy and bulky to import in one or even two boxes.
[71] I accept that there is no evidence that Mr Pritchard and Mr Piukana themselves opened the boxes and dealt with the drugs. There is evidence that Mr Pritchard personally carried boxes and must have been aware of the weight. There is also evidence that both Mr Piukana and Mr Pritchard received substantial amounts of cash and must have been aware of the significant commercial level of the operation.
[72] I cannot say beyond reasonable doubt that the weights recorded in the manifest/air waybills correlate as closely as the Crown contends to the weight of the methamphetamine contained within the boxes. I cannot sentence on the basis that the June and July importations each involved over 100 kilograms of methamphetamine.
[73] I am satisfied, however, that I can safely draw an inference beyond reasonable doubt that the boxes must have contained sufficient methamphetamine that it was worth taking the risk of importing and removing multiple boxes from an aircraft. If the amount of methamphetamine involved were as little as 10 kilograms per importation there would be no reason for it to be contained within multiple boxes. Rather, importations could occur as they had on 12 July 2021 via passenger bag. The scale of the operation and the number of people involved in these importations does not support the defence position.
[74] I cannot be sure of the exact quantum, but I am sure that across the entire operation the amounts which the group intended to import were in the hundreds rather than in the tens of kilograms. As for the importations on 9 June and 31 July 2021, I consider that I can safely say that most of the weight of the boxes would have been made up of methamphetamine. There is no logical reason why the syndicate would take the risk of removing more boxes than they needed to from an aircraft. This was a highly organised and commercial enterprise.
[75] I intend to sentence on the basis that Mr Piukana and Mr Pritchard were knowingly involved in importing at least 100 kilograms of methamphetamine across the whole of their involvement. I regard that estimate as conservative.
Wilkinson-Smith J
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