The Queen v Alexander Tamati - [2002] NZCA 8

IN THE COURT OF APPEAL OF NEW ZEALAND CA270/01

CA 285/01
THE QUEEN

V

ALEXANDER TAMATI

AND

PAUL CHRISTOPHER LAXON

Hearing: 19 February 2002

Coram:  Anderson J
  Williams J
  Baragwanath J

Appearances:              E R Fairbrother for Tamati
  A K G Morgan for Laxon
  N M Crutchley for Crown

Judgment: 26 February 2002

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JUDGMENT OF THE COURT DELIVERED BY BARAGWANATH J

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Mr Tamati was convicted in the High Court at Napier on 26 July 2001 and Mr Laxon at Wellington on 25 June 2001 on a series of drug offences. Mr Tamati appeals against conviction and Mr Laxon seeks leave to appeal against sentence.
At the opening of Mr Tamati’s appeal, Mr Fairbrother sought an adjournment to enable him to mount a challenge to the admissibility of tape recordings and transcripts of them, made by a police officer for the assistance of the jury, which had been admitted without objection at the trial and had been the subject of an appropriate direction by the trial Judge.
The case is not one like Stirland v Director of Public Prosecutions [1944] AC 315,327-8 where there is an evident error in admitting evidence at trial, which must be corrected on appeal. There is here no more than an assertion, without supporting data, that the tapes were so difficult to hear that the transcript is unreliable. That is a point which, if valid, ought to have been raised pre-trial, or at latest at the trial itself where the Judge could give a ruling from which a challenge would lie. There is simply no foundation for any submission that the tapes and transcripts, which were at the heart of a month long trial, were so radically deficient that there was miscarriage of justice.
The Court having signalled its conclusion on that issue, Mr Fairbrother responsibly acknowledged that the other grounds of appeal could not be pursued.
This appeal is accordingly dismissed.
Mr Laxon’s application for leave to appeal against sentence was presented on two grounds; the first was that his sentence of 8½ years imprisonment was outside the range legitimately open to the sentencing Judge. The second is that there was such disparity between that sentence and Mr Tamati’s of an effective 6½ year term that the test in R v Lawson [1982] 2 NZLR 219, at 223 is met.
It is not merely whether the offender thinks he has been unfairly treated, but whether there is a real justification for that grievance; whether a reasonably minded independent observer aware of all the circumstances of the offence and the offenders would think that something had gone wrong with the administration of justice.
We do not accept the first submission advanced by Mr Morgan in his thoughtful and helpful argument, but are persuaded by the second.
A notable feature of the offending is that it entailed an effective joint venture between Mr Laxon, whom the Judge described as a “long standing drug dealer operating in a substantial way in Hawkes Bay with connections as far north as Auckland and into the Manawatu”, with Mr Tamati, a senior member of the Mongrel Mob in Hawkes Bay. It was expressed as a fifty-fifty arrangement, whereby the two would acquire illegal drugs through manufacture or through purchase from various sources for sale and disposal, through Mr Laxon’s own outlets and more significantly, through gang connections of Mr Tamati. The drugs involved included methamphetamine, a Class B drug manufactured either from cold tablets or pills acquired in a concerted and planned way from chemist shops, and elsewhere with the intention to manufacture, and related precursors, liquid ephedrine, or pseudo-ephedrine, obtained from various sources. Messrs Laxon and Tamati had access to large quantities of pills, or other raw product and each agreed with the other that these would be manufactured into methamphetamine. The Judge was satisfied that the agreement was designed to implement a large scale operation with very substantial quantities of methamphetamine intended to be produced, and when they were produced, involving considerable sums of money. The supply of the methamphetamine, once produced, occurred either through sale in deal bag lots from Mr Laxon’s premises, generally in small amounts, but more significantly by sale and disposal through the gang affiliation and connections.
Mr Laxon was sentenced on 9 August 2001, together with two lesser co-offenders, and Mr Tamati on 15 August, 2001, together with four other lesser co-offenders. During his sentencing remarks on each occasion, the Judge observed:
In a general way the evidence satisfied me on the facts that Alexander Tamati and Paul Laxon were the master minds and major participants in the drug manufacturing and dealing operations of this group. They went to extreme lengths to hide their activities in particular operations, which yielded to each of them, or their interests, substantial amounts of money. There was other evidence, which made it quite clear that transactions totalling several thousand dollars were frequent occurrences. Laxon himself spoke of amounts of money that he earned through the operation. Also, Tamati on one occasion had a bottle of ephedrine, which was worth, on his own say-so $10,000. At Mr Tamati’s sentence the Judge added that he had been heard to say to another person that what he had eventually lost was worth $70,000.
When the trial commenced on the third occasion, after two false starts, Mr Laxon pleaded guilty on arraignment to a total of seven crimes being:
[1]Conspiracy with Mr Tamati and others to manufacture methamphetamine;
[2]Conspiracy with Mr Tamati and others to supply methamphetamine
[3]Conspiracy to sell the Class C controlled drug cannabis plant;
[4]Conspiracy to manufacture cannabis oil;
[5]Conspiracy to supply the Class B controlled drug morphine sulphate;
[6]Jointly with Mr Tamati and another on 27 August 2000 having in his possession methamphetamine for the purpose of supply to others;
[7]Jointly with another on 24 July 2000 having in his possession methamphetamine for the purpose of supply to others
He was sentenced to 7 years imprisonment on the charges of conspiracy to manufacture and to supply methamphetamine; to 3 years on the charges involving cannabis oil and morphine sulphate; and to 8 1/2 years on each of the counts of possession of methamphetamine for supply.
Mr Tamati denied his guilt and after a month long trial was convicted by the jury on the first two counts of conspiracy with Mr Laxon and then on the further joint count with Mr Laxon of possession of methamphetamine for supply. He was sentenced to 5 years imprisonment on the charge of conspiracy to manufacture methamphetamine, to 3 years on the charge of conspiracy to supply methamphetamine for the purpose of supply and 6 ½ years on the charge of possession of methamphetamine for the purpose of supply.
We are satisfied that, the disparity argument aside, in terms of the leading authority R v Wallace [1999] 3 NZLR 159 Mr Laxon’s 8 ½ year lead sentence imposed on each of the two counts of possession of methamphetamine for supply, reduced from 10 years to recognise his pleas of guilty, was sustainable. The Judge observed, having heard the intercepted conversations,
both at your home and on your mobile telephone, as well as seeing your text messages, I have no doubt at all that you, together with a senior gang member (if not the President, but nevertheless close to it), were ringleaders and masterminds of an extensive, organised drug dealing operation. You were heard to boast of earning very substantial amounts which you said you put into a trust fund and into commercial activity. It is said on your behalf this was simply boasting and ‘big noting’, but the tapes revealed you were saying, for example:
‘I have been in jail most of my life and what I do I sell drugs… I buy commercial buildings … rent them out
I have got a trust… for five kids worth $1.6m… all those years I have got $1.6m. I am a millionaire. I gave my father a hunk of my money all my life since I have been a criminal. You know he has invested it … and I didn’t think it would be worth that much. …until I went on this journey with Sandy [an apparent reference to Mr Tamati].
On other occasions Mr Laxon spoke of earning large amounts, in the order of hundreds of thousands of dollars in the three months prior to the conversations just mentioned.
The Probation Officer described Mr Laxon’s risk of re-offending as high, given the nature of his criminal associates and his substantial criminal history dating back over 25 years with drug related offending dating from 1982. In 1997 he received a total of four years imprisonment for several cannabis related offences.
Others of his 43 previous convictions included dishonesty, burglary, and possession of weapons.
His personal involvement was patent. As the Judge observed, he was at the very centre of an organisation involving planning and cunning. Over three months, June to August, he made 725 phone calls from cell phones to seven co-offenders. In June and July he and four other major players sent each other 372 text messages. The two substantive counts for which he received the 8 ½ year sentences involved major offending. The first, committed jointly with Mr Tamati, came to light when the Police raided the Tamati home. The Judge stated:
There was there present A Tamati, a member of a gang, and his wife, and also Mr Paul Laxon. The wife gave evidence of not knowing what was present at the time and the jury acquitted her. However, there was found to be six deal bags of methamphetamine totalling 167 grams or 6 ounces, having a street value of perhaps $25,000, although the Crown says it might be as high as $50,000. The occupier of the premises, Mr Laxon’s co-conspirator, made strenuous efforts to prevent the police entering, during which time efforts were made to dispose of methamphetamine down the toilet by Paul Laxon. It is not known how much was disposed of, if at all, but the evidence satisfies me that Paul Laxon was present for at least two hours. It is abundantly clear that he and his co-conspirator were in the process of furthering their joint enterprise to sell methamphetamine. Cash was found there of $4,118 in Laxon’s car and there was a large amount of cash also found on the table at the premises, and a few days later found hidden at that house. As I said, apart from cash, the quantity of methamphetamine had a value of at least $24,000.
Mr Paul Laxon’s explanation to the probation officer that he was simply visiting an acquaintance, I use the word advisedly, for the purpose of having coffee, was fatuous.
The second did not involve Mr Tamati. The Judge’s account was
The second count of possession of methamphetamine for supply involved an earlier occasion. The jury had found a different co-conspirator [M Sua] guilty of that crime, that is of jointly possessing this methamphetamine. Mr Paul Laxon had pleaded guilty to it. It is hardly surprising that the jury found the co-conspirator guilty, given that on 24 July M Sua was stopped by the police in the street in which Laxon’s house was situated. There was in his possession a very substantial quantity of methamphetamine, totalling almost three quarters of a kilo, namely 750 grams, having a value of at least $100,000. It might be higher. Indeed, Paul Laxon is heard to say in an intercepted conversation that the taking of that methamphetamine by the police ‘cost’ him $150,000. That is his own assessment of its value.
Paul Laxon pleaded guilty to the joint possession of this, because the evidence is quite clear he was getting his associate to deliver the prepared methamphetamine to him for the purpose of eventual supply to others. Given that that occurred four days after Paul Laxon and his associate had been stopped on 20 July going to Auckland with a substantial quantity of tablets designed to be manufactured into methamphetamine, which had been confiscated by the police, there is only one conclusion to be drawn from the fact that three quarters of a kilo of prepared methamphetamine was in their joint possession four days later; namely, they were operating in a very substantial way.
Then followed the remarks we have reproduced at para [9] above, which were repeated at Mr Tamati’s sentencing.
Mr Morgan acknowledged that Mr Laxon’s prior offending warranted a degree of difference between him and Mr Tamati, whose previously serious criminal offending had been diminishing and who enjoyed excellent references for supporting sport and other community activities. And he was convicted of fewer offences than Mr Laxon. But he submitted that the disparity of 8 ½ years imposed on his client, a 50% joint venturer who admitted guilt, as against 6 ½ years for Mr Tamati, the other 50% joint venturer who did not, was excessive.
We do not doubt that the Judge was rightly concerned at the gravity of the substantive offending committed by Mr Laxon, which included several counts of which Mr Tamati was not convicted. But it is necessary to stand back and consider the overall perspective.
Under New Zealand criminal law conspiracy is in general characterised as a lesser offence than substantive offending: compare the maximum 7 year term available under the general provision of the Crimes Act s310 and 14 years under s6(2A) of the Misuse of Drugs Act with the much higher penalties, up to life imprisonment, available for substantive offending. The justification is that conspiracy is complete upon agreement, even if the criminal conduct contemplated is never carried out.
But there are two classes of conspiracy. While inchoate conspiracies may be of lesser gravity than substantive offending, conspiracy to commit substantive offences wholesale may be of greater gravity than any individual offence. An example is R v Coghlan and Young (1976) 63 Cr App R 33, a case of conspiracy to cause explosions in the United Kingdom. Archbold 2002 notes at para 33-56 that a conspiracy charge may be appropriate in cases
of complexity in which the interests of justice can only be served by presenting the jury an overall picture which cannot be achieved by charging relatively small number of substantive offences…
While given the limitations on maximum sentence no grand conspiracy count could realistically have been brought in this case, we see the present substantive offences as in essence overt acts of the overall agreement between Messrs Laxon and Tamati. The prime issue on sentencing is the individual culpability of each offender. In this case we are satisfied that Messrs Laxon and Tamati were equals, not merely nominally but in terms of their respective contributions overall to the total of what was offending on a grand scale: Mr Laxon through his intimate knowledge of and contacts in the drugs world, as well as his own active participation; Mr Tamati by bringing to bear the organisation, personnel and resources of his gang as well as using his house for the venture in the manner that resulted in the joint count of possession for supply on 27 August.
There is an element of fortuity as to the number of charges each faced as the result of the unlawful conduct of each en route to the common goal. It follows in our view that the starting point must be of broad equality of treatment, albeit modified to reflect differentiating factors such as the specifics of their individual roles, their respective past records, and their pleas.
Seen in that light we regard the disparity between Messrs Tamati and Laxon as infringing the Lawson test. We have reflected on the question whether in the circumstances the 6½ year sentence on Mr Tamati is so low that any reduction of his sentence below 8½ years would itself lead an independent observer to conclude that justice had miscarried in relation to such reduction. We have concluded that the greater concern to the overall administration of justice is that of the disparity and to meet it have decided to reduce Mr Laxon’s lead sentences by one year.

Result

Mr Laxon’s application for leave and his appeal are allowed and the sentences of 8½ years on counts 6 and 7 are set aside and replaced by terms of 7½ years.
We have recorded that Mr Tamati’s appeal is also dismissed.

Solicitors

Crown Law Office, Wellington