The Queen v Harriman

[2008] NZCA 53

IN THE COURT OF APPEAL OF NEW ZEALAND

CA109/07
[2008] NZCA 53

THE QUEEN

v

ALLEN LOUIS HARRIMAN

Hearing:13 February 2008

Court:Ellen France, Williams and Heath JJ

Counsel:R M Mansfield for Appellant

D G Johnstone for Crown

Judgment:11 March 2008 at 11.30 am

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS OF THE COURT

(Given by Ellen France J)

Table of Contents

Para No

Introduction  [1]
Grounds of appeal  [6]
Background   [10]
Conviction appeal  [18]

Admissibility issues  [19]

The Europol CD-ROM  [20]

Detective Sergeant Brazier’s evidence about tape measures  [41]

Directions to the jury  [52]

Expert evidence  [53]

Guilty pleas  [62]

Timing of jury deliberations  [66]
Sentence appeal  [71]
Result  [84]

Introduction

[1]       The appellant was convicted after trial by jury in the High Court on four drug related charges, namely:

(a)Importing a class B controlled drug, MDMA (ecstasy) on 26 June 2005 (count 1);

(b)Conspiring to supply ecstasy (count 2);

(c)Conspiring to supply a class A controlled drug, heroin (count 3); and

(d)Possessing heroin for supply (count 7).

[2]       At the commencement of the trial, the appellant pleaded guilty to a charge of importing ecstasy on 24 July 2005 (count 5) and to a charge of possession of ecstasy for supply (count 6).

[3]       The appellant was sentenced on 22 February 2007 by the trial Judge, Stevens J, to an effective sentence of 12 years imprisonment with a minimum period of imprisonment of six years six months:  HC AK CRI 2005-004-14921.

[4]       The appellant appeals against conviction and sentence.

[5] Judgment on an appeal by the appellant’s co-accused, Wayne Stuart Dixon, is also being delivered today: [2008] NZCA 52.

Grounds of appeal

[6]       The grounds of appeal on the conviction appeal can be grouped into three categories.  First, there are issues about the admissibility of evidence.  Two pieces of evidence are in issue, namely:

(a)       images from a CD-ROM called the Europol Ecstasy Logo Catalogue 2006; and,

(b)       evidence from Detective Sergeant Brazier as to the use of the phrase  “tape measure” as a code for electronic scales. 

[7]       Secondly, the appellant challenges a number of aspects of the Judge’s directions to the jury.  The appellant says that Stevens J should have included a witness for the appellant in the directions given about expert witnesses, and that there should have been directions about the effect of the appellant’s guilty pleas on counts 5 and 6.

[8]       Finally, the appellant says there were problems with the timing of the jury’s deliberations, in particular, the proximity of the jury’s retirement to the Christmas vacation.

[9]       The sentence appeal is brought on the basis that the sentence imposed is manifestly excessive.

Background

[10]     All of the charges came to light out of an interception warrant operation conducted by the police, known as Operation Puma.  During the period between 24 June 2005 and 27 July 2005, the police intercepted and recorded telephone communications between the appellant and others.

[11]     Counts 1 and 2 related to the importation of and conspiracy to supply, ecstasy.  The Crown case in relation to Mr Harriman on these two counts was largely circumstantial.  On 26 June 2005, the appellant returned to New Zealand from Europe.  A search of Mr Harriman’s luggage by Customs on his arrival in New Zealand did not reveal any drugs.  But, over the next two to three weeks, the police recorded a number of conversations between the appellant and his co-accused, Mr Dixon.  The Crown case was that those conversations indicated that the appellant had imported approximately 1,200 ecstasy tablets into New Zealand and that he was conspiring with Mr Dixon to supply and sell those tablets in New Zealand.  Two other co-accused, James Brown and Carl Atwell were also involved in the conspiracy reflected in count 2.

[12]     Counts 5 and 6 related to an importation of ecstasy in July 2005.  On 14 July 2005, the appellant left New Zealand and went back to Europe.  He returned to New Zealand on 24 July 2005 on a flight originating out of Singapore.  He was searched by Customs officers and was found to have a crepe bandage around his waist covering a length of plastic hosing within which were 700 ecstasy tablets.  The Crown alleged that before Mr Harriman left on this overseas trip, he spoke to and organised the importation with Mr Dixon and another co-accused, Mark Sandstad.  The appellant pleaded guilty at the commencement of the trial to these two counts.

[13]     After the appellant’s return to New Zealand, a search warrant was obtained to search his mother’s home.  Prior to travelling overseas, the appellant had been heard making arrangements to leave his car at his mother’s address.  The car was taken away by the police and searched.  A package containing 63 grams of heroin (61 per cent purity) was found in the boot together with a large number of unused plastic bags and a set of electronic scales. The appellant’s fingerprints were later identified on the exterior packaging of the heroin.  In addition, the police intercepted a number of phone calls and text messages between the appellant and his co-accused, Paul McNeil, that indicated a conspiracy to supply heroin.  These events formed the basis of counts 3 and 7.

[14]     Mr Harriman gave evidence at trial.  He denied importing ecstasy in June 2005 and said that his discussions with Mr Dixon related to the sale of party pills.  He said he ordered a package of party pills including some with an “S” insignia on them before he left New Zealand for Europe on the June trip.  Mr Harriman’s evidence was that this trip was as part of his consultancy business and  any discussions with Mr Sandstad involved a legitimate business proposition.

[15]     As to the two charges for which he pleaded guilty, Mr Harriman said these arose out of a “moment of madness and weakness” and he saw this as a way to raise some money quickly to meet his $40,000 tax bill.

[16]     He denied that the heroin in his car was his and his explanation for its presence was that he had lent his car to another man.

[17]     Finally, Mr Harriman said that he supplied hashish, not heroin, to Mr McNeil.

Conviction appeal

[18]     We turn then to the conviction appeal.

Admissibility issues

[19]     We deal first with the two admissibility issues.

The Europol CD-ROM

[20]     Following a voir dire on 6 December 2006, Stevens J ruled admissible as documentary hearsay photographs taken from a CD-ROM entitled “Europol Ecstasy Logo Catalogue 2006”.  The images were eight tablets each bearing a “Superman” logo.  A copy of the exhibit is attached as appendix A. 

[21]     The background to the production of this exhibit is that in discussions between the appellant and Mr Dixon, there were references to “Supermans”.  The Crown alleged these references were to ecstasy tablets with a stylised imprint or logo referring to the “Superman” character.  The defence case was that the discussion related to party pills or other herbal products. 

[22]     In ruling that this evidence was admissible, Stevens J accepted the Crown submissions that the requirements of s 3(1)(a) of the Evidence Amendment Act (No 2) 1980 (now repealed) were met.

[23]     Section 3(1) relevantly provides that subject to subs (2) and to ss 4 and 5 (none of which are relevant here):

[I]n any proceeding where direct oral evidence of a fact or an opinion would be admissible, any statement made by a person in a document and tending to establish that fact or opinion shall be admissible as evidence of that fact or opinion if –

(a)the maker of the statement had personal knowledge of the matters dealt with in the statement, and is unavailable to give evidence; or

(b)the document is a business record, and the person who supplied the information for the composition of the record –

(i)        cannot with reasonable diligence be identified; or

(ii)is unavailable to give evidence; or

(iii)cannot be reasonably expected (having regard to the time that has elapsed since he supplied the information and to all the other circumstances of the case) to recollect the matters dealt with in the information he supplied;

…

[24]     A “document” is defined in s 2(1) as including:

(b)       any information recorded or stored by means of any tape-recorder, computer, or other device; and any material subsequently derived from information so recorded or stored: …

(e)       any photograph, film, negative, tape, or other device in which 1 or more visual images are embodied so as to be capable (with or without the aid of some other equipment) of being reproduced.

[25]     A “business record” is defined in s 2(1) as a document made either pursuant to a duty or in the course of, and as a record or part of a record relating to any business:

[F]rom information supplied directly or indirectly by any person who had, or may reasonably be supposed by the Court to have had, personal knowledge of the matters dealt with in the information he supplied.

[26]     For these purposes, a person is unavailable to give evidence if the person is, amongst other matters, “outside New Zealand and it is not reasonably practicable to obtain [the person’s] evidence” (s 2(2)).

[27]     Finally, in terms of s 16, for the purposes of deciding whether or not any statement is admissible under s 3(1):

[T]he Court may draw any reasonable inference from the circumstances in which the statement was made and, in the case of a statement in a document, from the form or contents of the document in which it is contained … .

[28]     Stevens J in his ruling discussed the evidence on the voir dire from Detective Sergeant Beal.  He was the officer who had obtained the publication in CD-ROM form from which these images were taken and ultimately produced the exhibit.  The Judge noted at [3] the evidence that the publication was the result of an ongoing project:

[W]hich seeks to maintain a database or catalogue of the tablets commonly referred to as Ecstasy, with reference to their size, colour, content of active ingredients and the logos that appear on them.  It was prepared by Europol and contains more than 1640 logos.  Its purpose is to assist law enforcement agencies as to the origins of these products.

[29]     His Honour at [4] described Europol as a law enforcement organisation which tries to improve the operation of authorities in member states “in preventing drug trafficking and other serious forms of international organised crime”.  The Judge set out the evidence relating to the catalogue and its production as follows:

[5]       Detective Sergeant Beal gave evidence of having been an investigator dealing with drug investigation including the drug … Ecstasy for over eight years.  In the course of this work, he has had occasion to refer to previous editions of this publication, the first being in 2000.  He himself has used the catalogue as a means of identifying logos appearing on controlled drugs seized in New Zealand, thus gaining a reference to the possible origins of such drugs. …

[6]       The publication itself notes that the catalogue was based on contributions from law enforcement agencies and forensic laboratories in member states, as well as information from international partners.  From having used successive editions of the publication, Detective Sergeant Beal was able to confirm that the CD-Rom itself is protected by copyright and has a search capability for the purpose of enabling users to locate different types of tablet logos from the more than 1640 examples.  From his experience, the Detective Sergeant was able to describe how the publication gave examples of stamps and dies and the various patterns imprinted on the tablets.  These derived from the metal stamps used in the tableting machines to press the tablets and imprint the required design on them.  The introductory section to the CD-Rom contains a detailed description of the content of the publication by the Director of Europol.

[30]     In assessing the application of s 3(1)(a), the Judge concluded that direct oral evidence of the contents of the CD-ROM publication would be admissible.  Stevens J said at [17] that “[e]xpert opinion evidence would be provided by the editor or assembler of the images” and “[p]lainly”, it was not practicable to bring such a witness from Europol to give evidence in New Zealand.

[31]     As to whether the maker of the statements in the publication would have personal knowledge of the matters dealt with in the catalogue, Stevens J concluded at [19]:

This was confirmed by the Detective Sergeant from the experience which he personally had regarding seizures in which head been involved and which correlated to the contents [of] certain examples in the CD-Rom.  He also confirmed in his evidence that he had “credible belief of the contents of the disc from a relationship to other matters I had been involved in”.  It was this involvement that gave him confidence to rely upon the contents of the CD‑Rom publication.

[32]     The appellant says that the requirements of s 3(1)(a) were not met in this case because there was no evidence as to the identity of the maker and nor as to the maker’s availability or otherwise.  That meant, Mr Mansfield said, that there was no ability for the defence to challenge, for example, the composition of the tablets or to clarify when the tablets in the images were captured.

[33]     The Crown says that this evidence was admissible under s 3(1)(a) or, alternatively, as a business record under s 3(1)(b).

[34]     We consider that this evidence is properly characterised as an out of court statement by the person who maintains the catalogue.  That person may be, and probably is, relying on information officers provide.  For example, Detective Sergeant Beal confirmed that the New Zealand police had contributed to some of the material within the catalogue.  He gave an example from 2001 when a tableting machine was located in New Zealand, the stamps of which appear within the catalogue.

[35]     The question of whether it was a requirement for the operation of s 3(1)(a) to prove the identity of the maker of the document as suggested in Mathieson (ed) Cross on Evidence (8ed 2005) at [17.24] was left undecided in R v McLean CA449/94 30 May 1995.  In this case, relying also on s 16, we consider it is sufficient in terms of s 3(1)(a) that the maker is identifiable as the compiler.  On that analysis, the compilation process described by Detective Sergeant Beal does make it impracticable for that person to give evidence in New Zealand.

[36]     It is the reliability of the evidence that underlies Mr Mansfield’s submissions.  Malek (ed)  Phipson on Evidence (16ed 2005) at [30-15] notes a concern had been expressed in the context of reform of the equivalent English legislation that if a statement made by a person who was not identified was admitted, this would infringe art 6(3)(d) of the European Convention on Human Rights (the right of persons charged with criminal offences to cross examine those giving evidence against them) “if it meant that the defence had no opportunity to question … or challenge the credibility of the maker of the statement”.  Phipson says that for this reason s 116(1)(b) of the Criminal Justice Act 2003 requires the person who made the statement “[be] identified to the court’s satisfaction”.  If the evidence in issue was being used for a point of importance such that it was necessary to challenge the credibility of the compiler, we would have seen problems with its admission.  However, as it was used, we conclude it was properly admitted.

[37]     The key point is that the evidence was advanced as representing tablets which had come to the attention of the authorities in Europe containing amphetamine substances and so could be uncontrolled or controlled drugs.  Although the exhibit itself refers to “ecstasy” tablets, the evidence as ultimately advanced was more limited.  Detective Sergeant Beal explained in the course of the voir dire that “amphetamine type substances” covered a range of substances including MDMA but also some of the benzines such as benzylpiperazine (BZP) which is a constituent of party pills. 

[38]     In his evidence at trial, he confirmed that other substances such as BZP were included within the “umbrella term” of amphetamine type substances.  He also said that BZP was not at the time a controlled drug in New Zealand although it was in some other countries.   Accordingly, the evidence was confined to a narrow point and it would have been apparent to the jury that the evidence was just as consistent with the defence case as it was with the case for the Crown.

[39]     We add that there is also merit in the argument that this evidence came within the “business record” exception.  It was arguably a statement prepared pursuant to a duty from information supplied by persons who may reasonably be supposed to have had personal knowledge of the matters in the catalogue.

[40]     In any event, even if the evidence should not have been admitted, we consider its admission did not give rise to a miscarriage for the reasons we have discussed under the heading of reliability.

Detective Sergeant Brazier’s evidence about tape measures

[41]     Again following a voir dire, evidence was admitted from Detective Sergeant Brazier, a police drugs expert, as to the use of the term “tape measure”.  The Detective Sergeant said he had experience in the drug context of the use of the term “tape measure”.  His evidence was that this was a phrase “understood by the listener and a form of code” and it was a “common code” used to describe electronic scales.  When asked in evidence in chief about the detail of his experiences of the use of the phrase he answered as follows:

Over the years I have operated a number of informants involved in the drug scene and a number of those informants I have spoken to directly have used that phrase to describe electronic scales, and electronic scales are used to weigh accurately powder drugs.

[42]     The background to this evidence is that in the course of a telephone discussion between the appellant and Mr McNeil on 1 July 2005, the following exchange was recorded:

Harriman:… Hey look um, I’ve actually, somebody’s borrowed my tape measure and I’m just wondering if I can borrow it off you, borrow your one, um it’s way over in West Auckland and I’ve gotta go and pick it up.  It’s a hell of a long way away and I don’t really want to go and do that today if I can help it and I’m also hoping that maybe you got a cheque through today, if there’s any possibility of that.

McNeil:Um, possibly, ah not yet but I was hoping to catch someone up anyway mate.

Harriman:Oh good that’d be great, yeah, that’d be really good but if I could borrow the um, the ah tape measure off you I’d be really grateful.  You haven’t got it at work have you?

McNeil:Nah finished mate, um.

Harriman:Oh okay, alright.

…

Harriman:No that’s alright, it’s no panic, it’s no panic mate, I just thought if you had them with you it would have been great cause I, what I wanted to do was I wanted to do a bit of measuring and stuff just before.

McNeil:Yeah.

Harriman:Just before things got too carried away and I and people started expecting me to do what I’ve been doing and um.

McNeil:Yeah.

Harriman:I, I, I can, I can sort it by the weekend it’s not a problem.

McNeil:Well mate, if you want to um I can chuck it in for the morning if you want, no worries.

[43]     Mr McNeil in his evidence in chief was asked about this discussion.  He said that tape measures were an “integral part” of his job as a project manager for a civil engineering company and that he usually carried three or four tape measures.  When pressed in cross-examination about why Mr Harriman would say his tape measure was in West Auckland but he was prepared to wait for Mr McNeil’s on the following day, Mr McNeil said:

I think the conversation goes he would have probably preferred it that day but could wait until the morning.

[44]     The appellant submits that Detective Sergeant Brazier’s evidence should not have been admitted because there was an insufficient factual basis provided by the witness.  If the evidence was properly admitted then, the appellant says, the Judge did not adequately direct the jury on the application of the evidence and as to the weight to be given to it.  The defence concerns about the evidence should have been highlighted to the jury.

[45]     We are satisfied that in the circumstances of the case there was a sufficient factual basis for the admission of this evidence: R v Carter (2005) 22 CRNZ 476 at [47] (CA).  Mr Mansfield’s criticisms were directed to the officer’s reliance on the experience of informants as opposed to the officer’s own experience or learning and at the absence of detail about the experiences with informants. 

[46]     As to the first of these concerns, in the course of the voir dire, the officer explained that a number of informants over the years had used that phrase but also that he had heard the phrase used in this way “many times”.  What the officer could not recall was the detail of the operations in which he had heard this usage and nor would he give further information about the particular informants.  In the circumstances and given his acknowledged general expertise in relation to the drug world, this was not critical.

[47]     In his Ruling (No 2) of 27 November 2006 on this issue, Stevens J recorded at [17] that at least some of the defence concerns about Detective Sergeant Brazier’s evidence had been met by clarification of the way the Crown intended to lead the evidence.  Hence there was limited cross-examination of Detective Sergeant Brazier on this aspect.

[48]     The Judge went on to say at [29] that he considered that the officer was well qualified and could give such evidence:

[B]ased on his familiarity in a general sense with the use of that term to refer to electronic scales, on the assumption that the reference was drug related.

[49]     Stevens J said that assumption would have to be acknowledged, as counsel for the Crown accepted.

[50]     As to the argument that the Judge should have directed the jury as to the use of the evidence and its weight, Stevens J gave an orthodox direction as to the use of expert evidence.  His Honour also reminded the jury, appropriately, that the weight given to such evidence was a matter for them.

[51]     Finally, we do not consider it was necessary for the Judge to remind the jury of the defence concerns as to this evidence.  Applying a level of reality to the situation, if the jury accepted that the conversation was drug related the only common sense conclusion was that the phrase “tape measure” was being used as a code.  The Detective Sergeant’s evidence is also consistent with the fact that a set of electronic scales was found in the appellant’s car when the police searched it and located the package of heroin.  There was also evidence about the purchase of the scales that the Crown said linked them to Mr McNeil.

Directions to the jury

[52]     We turn now to the grounds of appeal relating to the Judge’s summing-up.

Expert evidence

[53]     The appellant submits that Stevens J should have referred to Matthew Bowden, who gave evidence on behalf of the defence, when he gave his directions about the use of expert evidence.  The appellant argues that the effect of this omission was to denigrate Mr Harriman’s defence and leave the jury without any assistance as to the relevance of this evidence.  That position was further undermined, the appellant says, because the Judge made no reference to Mr Bowden’s evidence when summarising the appellant’s defence.

[54]     As we have explained in relation to the similar complaint made by Mr Dixon, Matthew Bowden has a lengthy involvement in the development of the party pill industry in New Zealand.  He gave evidence about the existence of the party pill industry and explained that one “train of thought” was that party pills should look like ecstasy and so would have a similar logo pressed on them.  He also said that he had seen the “Superman” logo on party pills.

[55]     The latter evidence, in particular, the appellant says was important for the defence case that the importation in relation to count 1 related to party pills and not any controlled drug.

[56]     The Judge’s directions on expert evidence were as follows:

[80]     Expert witnesses are permitted to give opinions on subjects within their areas of expertise that are beyond the general knowledge of jurors.  Detective Sergeant Brazier was in this category.  You will recall he gave evidence about certain slang and other terms used in respect of certain types of controlled drugs, heroin, methamphetamine, and MDMA-Ecstasy.  He also gave evidence of the use of the term “ouwn bra” as being an example of pig English, or as we later heard gibberish.  Detective Sergeant Brazier also referred to the use of the term tape measure to refer to electronic scales.

[81]     In assessing Detective Sergeant Brazier’s evidence and his opinions, you must have regard to his qualifications and experience.  But this is a trial by jury, not a trial by expert.  It is for you to decide how much weight or importance you give to his opinions, or, indeed, whether you accept them in the context of all the evidence you have heard.  It is entirely a matter for you.

[57]     As was the case for Mr Dixon, we agree with the appellant that Mr Bowden should have been explicitly included in the directions relating to expert evidence.  However, largely for the same reasons we gave in relation to Mr Dixon, we accept the Crown submission that the omission has not given rise to a miscarriage.

[58]     First, Stevens J did not describe Detective Sergeant Brazier as the only expert.  Mr Bowden’s expertise was not challenged and so the jury was aware of the nature of his evidence.  In that context, orthodox directions about the use of such evidence were given and the jury was directed in the usual way to consider all of the evidence.

[59]     Second, the evidence itself was not contentious.  The end result was that the jury did know there was a then legitimate industry in relation to party pills and that it was common for party pills to mimic ecstasy in appearance.  That was in contrast to the evidence of Detective Sergeant Brazier who was cross-examined on various aspects of his evidence.  Nor was Mr Bowden’s evidence of having seen party pills with the “Superman” logo particularly strong.  The text of what he said is set out at [51] and [52] of R v Dixon.  In essence, Mr Bowden said he had seen some pills in 2003 with the “Superman” logo but he did not know what was in them.  More recently, he referred to having seen some tablets with this logo which he “understood” were party pills although they were not manufactured by his company.

[60]     Finally, Stevens J did discuss Mr Bowden’s evidence in summing up albeit primarily in the context of outlining Mr Dixon’s defence.  On this aspect, there was no significant difference in their defences.

[61]     In these circumstances, while Mr Bowden should have been identified in the summing-up as an expert, the omission has not given rise to a miscarriage.

Guilty pleas

[62]     The appellant also says the Judge erred in not giving the jury any directions either immediately after arraignment or in summing up as to the effect of the appellant’s guilty pleas on counts 5 and 6 and/or how those pleas should be treated by the jury when it came to their deliberations on the remaining counts.

[63]     The Crown submits that once the appellant gave evidence, his guilty pleas were subsumed within his evidence about that offending.  He gave evidence confirming his guilt.  Mr Johnstone also says that the Crown put the conduct on a similar fact basis and the extent to which the conduct could be relied upon by the jury was properly addressed by the Judge.

[64]     Stevens J dealt with the matter at [89] in the context of outlining the Crown case on count 1, and, in particular, when discussing the evidence the Crown said was relevant to the nature and amount of the controlled drug said:

[M]r Harriman in his own evidence acknowledged being approached about ecstasy on a previous trip to Europe by a person looking to expand the ecstasy market into New Zealand.  He plainly had available to him a source of supply which he utilised for the second importation on 24 July 2005.  So, the Crown points to the availability of MDMA and the opportunity to source it in Europe.  But I must warn you to guard against any tendency to think along the lines of “well in any event he has a tendency to behave badly, so he must be guilty”.  That would be false logic and obviously unfair.

[65]     We accept the Crown submission that in a case where the pleas were made in front of the jury and where the appellant had given evidence about the offending,  this direction was sufficient.  Essentially, the appellant’s evidence was that his financial situation had driven him to import ecstasy on the second occasion but not on the first.  This became one of those issues the jury could resolve without the need for a more detailed direction from the Judge.

Timing of jury deliberations

[66]     The trial in this case commenced on 20 November 2006.  The Judge summed up on 18 December 2006 and the jury retired shortly before 1 pm on that day which was a Monday.  The jury deliberated for some eight hours.  Verdicts were returned on 18 December 2006.

[67]     The submission for the appellant is that the Judge should have, on his own motion, discharged the jury and ordered a retrial under s 374 of the Crimes Act 1961.  The appellant also raises a concern about the “imminence” of the Christmas holiday period and the “implicit” pressure that this would place on the jury to reach a decision without delay and without proper consideration. 

[68]     At best, the appellant relies on what is said to be the “unusual” factor of a trial proceeding “so close to a major holiday”.

[69]     There is no merit in this submission.  We adopt the Crown submissions which point out that there is nothing to suggest any pressure or improper approach in this respect on the part of the jury.  There were at least four working days within which the jury could deliver a verdict prior to Christmas.  The jury did not ask any questions or asked to have the taped conversations replayed.  They had with them a transcript of the evidence which was indexed as well as the Judge’s issues paper.  The Judge had told them they were free to ask questions or seek assistance.  The suggestion that there was anything untoward in the timing and nature of the deliberations is purely speculative.

[70]     We dismiss the conviction appeal.

Sentence appeal

[71]     In sentencing the appellant, Stevens J took the possession of heroin as the lead offence.  The Judge characterised the offending as a large scale commercial operation involving both ecstasy and heroin which extended over a period of time.  Stevens J treated the appellant as in “the category of instigator and prime mover” (at [81]) with access to commercial sources in Europe and to an established supply chain in New Zealand.

[72]     Having considered the relevant guideline judgments for heroin offending, the Judge said a starting point of between eight and nine years imprisonment would be appropriate for that offending.  For the ecstasy related offending he saw a starting point of between six and seven years as appropriate.  Bearing in mind the totality of the offending, Stevens J said that a starting point of eleven years imprisonment was warranted.  From that, the Judge added an uplift of one year for Mr Harriman’s previous conviction for heroin trafficking in Australia for which he had been sentenced to nine years imprisonment.  The Judge did not consider there were any mitigating factors and a sentence of twelve years with a minimum period of imprisonment was imposed. 

[73]     In developing the submission that the sentence was manifestly excessive, Mr Mansfield took issue with the Judge’s characterisation of Mr Harriman’s role in these various enterprises.  He also challenged the various factual findings made by the Judge.  He said there was an absence of evidence as to why the appellant held the heroin and what his role was in relation to that so that the conclusion that the heroin was to be divided up and sold by the appellant was not open to the Judge.

[74]     Mr Mansfield also sought to minimise the appellant’s personal gain and took issue with the Judge’s characterisation of the appellant as motivated by “greed”.

[75]     In terms of the ecstasy related offending, Mr Mansfield’s submission was that this was not sophisticated but rather desperate offending which was simple in nature. 

[76]     The appellant also says that the Judge must have effectively imposed a cumulative sentence for the ecstasy offending without saying say so and in a situation where that was not a course open to the Judge.

[77]     Finally, Mr Mansfield says that some credit should have been given for the guilty pleas.

[78]     It would have been preferable for the Judge to have been more explicit as to the basis for the shift from a starting point of between eight and nine years to the adoption of the eleven years starting point.  That said, the sentence imposed was within the available range and there is no merit in any of the other criticisms of the Judge’s approach.  There are a number of ways in which this particular sentence could have been constructed but as this Court has said in R v Xie [2007] 2 NZLR 240 at [16] and [17] ultimately the issue is whether the final sentence reflects the totality of the offending. Given the amounts involved, the combination of drugs, the scale and nature of the operation over the period of the offending, and the necessity for an uplift to reflect the previous conviction (a higher uplift would not have been objectionable), we are satisfied the final sentence imposed was within the available range.

[79]     As to the factual matters, as was the case in R v Stanaway [1997] 3 NZLR 129 at 134 (CA), the fact that the appellant was holding the amount of heroin found in his car, its packaging and associated equipment together with the expert evidence about the difficulties of importing this drug in this form, was consistent only with holding a bulk supply for the purpose of wholesale distribution.

[80]     As to the appellant’s role, we were referred to evidence which the Judge accepted from which it was plainly open to draw the conclusion the Judge did as to the appellant’s role in the enterprises.  Having presided over the trial, the Judge was in the best position to assess the respective roles of the six who were tried before him.

[81]     As to the guilty plea, as this Court has said in R v Beri [1987] 1 NZLR 46 at 48, the sentencing Judge is not always bound to make an allowance for a guilty plea. The relevant factors described in R v Te Pou [1985] 2 NZLR 508 at 510 (CA) are the stage at which the plea was entered (in this case very late) and whether or not conviction would have been inevitable, as it was in this case (and see also R v Fonotia [2007] 3 NZLR 338 at [50] and [51] (CA)). Similarly, having heard the evidence it was open to the Judge to conclude that the appellant’s offending was motivated by greed.

[82]     The notice of appeal also included a challenge to the imposition of a minimum period of imprisonment.  However, Mr Mansfield said that if the 12 year sentence was upheld, the challenge to the minimum period was not pursued.

[83]     The appeal against sentence is dismissed.

Result

[84]     The appeal is accordingly dismissed.

Solicitors:

Crown Law Office, Wellington

APPENDIX A