The Queen v JIMMY Rangi Toman
[2003] NZCA 214
•1 September 2003
IN THE COURT OF APPEAL OF NEW ZEALAND
CA189/03
THE QUEEN
v
JIMMY RANGI TOMAN
Hearing:19 August 2003
Coram:Anderson J
Glazebrook J
Paterson JAppearances: S J Gill for the Appellant
P K Feltham for the Crown
Judgment:1 September 2003
JUDGMENT OF THE COURT DELIVERED BY PATERSON J
Background
[1] On 16 May 2003, Mr Toman was found guilty by a High Court jury on one charge of conspiring to sell a Class C controlled drug, namely, cannabis plant, and three charges of engaging in money laundering transactions. He appeals against both his conviction and the sentence of four years imprisonment imposed.
[2] The Crown case was that Mr Toman and his co-accused Mr Rangi, were the proprietors of a commercial cannabis business based on sales of cannabis through a tinnie house situated in Wainuiomata. This involved a large scale and intensive retail operation over several months. Neither Mr Toman nor Mr Rangi lived at the address and the business was run by others, some of whom lived at the address. The cash obtained from the cannabis sales was allegedly used to purchase two boats and a motor vehicle.
[3] The conspiracy charge alleged that Mr Toman and Mr Rangi, together with other named persons, conspired to sell a Class C controlled drug, namely cannabis plant, to persons unknown. The three money laundering charges alleged that cash which was the proceeds of a specified drug offence was laundered by disposing of the said cash in payment for assets for the purposes of concealing that cash. A 5.3 m Stabi-craft was purchased by Mr Toman and Mr Rangi for $31,000, and then later traded in for a larger Stabi-craft when a further $32,000 was paid. Mr Toman also purchased a motor vehicle for $12,000.
[4] The Crown called 78 witnesses and produced 165 exhibits. Its case was largely circumstantial and included evidence that Mr Toman arranged the renting of the property at Wainuiomata, paid some of the rent, frequently used his cellphones to call Mr Rangi and the other alleged conspirators, and often visited the Wainuiomata property which over a five day period was visited by 250 vehicles and 70 individuals, all of whom stayed for periods of between 30 seconds to one minute. There was evidence that an undercover agent purchased tinnies at the premises, and that tinnies were found at the premises when they were searched. Other evidence detailed Mr Toman’s involvement in the purchase of the two boats, the circumstances surrounding the purchase by him of the motor vehicle, and details of his income and expenditure over the relevant period. In addition there was evidence from a Crown informer which implicated Mr Toman.
Grounds of conviction appeal
[5] The appellant relied upon four points of appeal although they were not all pursued with the same vigour. They were:
a)The Judge’s summing up was so unfairly balanced in favour of the Crown that essential balance and fairness was lost;
b)The Judge failed to fairly summarise the defence case to the jury;
c)Prejudicial evidence without any probative value was wrongly admitted;
d)The Judge erred in his directions to the jury on the standard of proof.
Unfair balance and failure to put defence case
[6] It is convenient to consider together the first two points of appeal, namely, that the summing up was unfairly balanced in favour of the Crown, and that the Judge failed to summarise fairly the defence case. They are linked.
[7] Mr Gill, for Mr Toman, submitted that this was a finely balanced trial where it was necessary for the defence to attack each strand of the circumstantial evidence. While there was a Crown informer, his credibility was challenged, and the Crown relied largely on circumstantial evidence. It was submitted that the nature of the case required a balanced summing up, but in fact the summing up was heavily weighted towards the Crown. This was partly achieved by introducing elements of the Crown’s case in the general directions, in a way which strengthened the Crown’s case. Further it was submitted that in view of the cumulative effect of the raft of circumstantial evidence led by the Crown, it was necessary for there to be a comprehensive review of the defence case. However, the Judge dealt minimally with the defence case and did not develop the defence points as he had developed the Crown points.
[8] An example of “building the Crown case” was said to be the way the Judge worded his direction on inferences. He used an example from one of the money laundering charges, and referred to some of the evidence the Crown relied upon. After doing this, he said:
Now the defence says well the inference is not open to you on the facts and that in the end is going to be a matter for you.
The submission was that the Judge should not have used an illustration from the actual case, or alternatively, that he should have balanced it with another illustration in favour of the defence. Trial Judges often tailor their inference examples to facts in the case. This Court has encouraged them to do so. There is no reason why an example from the case cannot be given, provided it is done in a neutral way and the Judge does not express his or her views on whether the conclusion should actually be drawn from the facts upon which the Crown relies. In this case, the Judge followed this practice. He gave an example from the Crown case, and then noted that the defence denied that the inference was available on the facts. The jury was reminded at that stage that the matter was one for them to determine, and the Judge did not express his views on whether the inference could properly be drawn. We do not agree that the example in this case was inappropriate.
[9] Another criticism was the manner in which His Honour dealt with his direction on circumstantial evidence. He spent three paragraphs giving a general direction unrelated to the facts of the case. Then, he dealt in a further three paragraphs with a criticism of the evidence by counsel for Mr Rangi, a statement of the Crown’s general position in respect of the multiple pieces of circumstantial evidence in which he referred to some of the evidence upon which the Crown relied, and finally, he noted that counsel for the accused had submitted that each of those pieces of circumstantial evidence can have an innocent explanation or connotation and individually, they mean nothing so collectively they mean nothing.
[10] In our view it is helpful to tailor a direction on circumstantial evidence to the facts of the case. This is what the Judge did. He did refer to several pieces of evidence in his example, but then balanced it by noting the submission of counsel for the two accused. It was not necessary for him at that time to explain why each piece of evidence referred to in the direction could have an innocent explanation. The jury having heard the evidence and the final addresses of counsel, would have been aware of the Crown’s reliance on circumstantial evidence. His Honour in his general direction reminded them that “it is for you to say whether you are satisfied that there is such a combination of facts or events that you are satisfied beyond reasonable doubt of guilt.” We cannot see that the direction was unfair, nor can we see any unfairness arising because some of the examples given related to Mr King and not Mr Toman. The examples given were in connection with the conspiracy charge and, as it was a general direction, it was not referring to the Crown’s case against Mr Toman in particular.
[11] There was a submission that the Crown’s case was bolstered by the Judge unfairly criticising counsel in his summing up. We do not accept that this was so. There were one or two comments where the Judge corrected statements of law made by counsel. This a Judge has a duty to do. He did not do so in a critical way. The main complaint under this head was that because of the manner in which the Crown had run its case one of the corrections could have misled the jury. Counsel for Mr Toman in his final address, had submitted to the jury that if they acquitted Mr Toman on the conspiracy charge, the money laundering charges fell away. This was on the basis that the moneys used to purchase the two fishing vessels and the motor vehicle were the proceeds which arose from the conspiracy charge. The Judge correctly advised the jury that as a matter of law, that statement was not correct. He said they could find the accused guilty on the money laundering charges if they found they were actively involved in concealing money that they knew had come from the sale of cannabis, through the transfer of that money into some other property. We are of the view that the Judge was not wrong in this direction to the jury. He was correctly stating the law. On the facts of this case, it would have been possible for a jury to have convicted Mr Toman on a money laundering charge even if they had acquitted him on the conspiracy charge, notwithstanding that the Crown’s case was that the money came from the profits of the conspiracy.
[12] We note that this point was also dealt with by the Judge in his charge directions. He warned the jury that if they acquitted on the conspiracy charge, they would need to think carefully about the money laundering charges because it would then follow that the crime which led to or resulted in the acquisition of the assets was not the conspiracy charge alleged. He stated that if they were satisfied that someone had sold drugs which were the source of the cash, or part of the cash, then that would be sufficient to satisfy the relevant element, provided the person laundering the money knew that it had come from a specified drug offence.
[13] The next submission under this heading was that in addressing the elements of the money laundering charges, the Judge unfairly commented on the evidence upon which the Crown relied, and did not balance that evidence by referring to the submissions of defence counsel. Matters which should have been referred to, in counsel’s submission, were the defence’s position that there had been no intention to conceal the interest in the motor vehicles, and that the money used to purchase the assets were all legitimate funds.
[14] It is correct that the Judge in describing the elements, did refer to the particular allegations upon which the Crown relied. This was particularly so in respect of the money laundering charges where, as an example on Count 2, he commented that the Crown alleged that both Mr Toman and Mr Rangi engaged in the money laundering transaction in respect of $31,000 cash, and it relates to the yellow Stabi-craft boat. However, in our view, he was doing nothing more than tailoring the elements of the charges to the allegations made. At the end of the summary, the Judge stated that if the answer to all those questions was “Yes”, then they should find the accused guilty. He added:
If you are left with a reasonable doubt in respect of either accused or both accused, then in respect of that accused, you will find him not guilty.
In our view, the tailoring of the charge directions to the facts of the case was neither unbalanced nor unfair. As a counsel of perfection, the Judge could possibly have said that Mr Toman’s case was that the purchases were financed not from the sale of cannabis but from legitimate sources. However, the omission to do so did not make the direction unfair.
[15] The final submission under this head was that His Honour over stressed the Crown case and under stressed the defence case when he summarised the respective cases. There were two particular matters relied upon. First, it was alleged that His Honour referred to matters which Crown counsel did not refer to in a detailed and lengthy final address. Secondly, that His Honour inadvertently noted that on one particular day, Mr Toman had possession of Mr Rangi’s Ford Falcon when the evidence was that it was another Falcon car which Mr Toman drove on that day. In concluding his summary of the Crown case, His Honour noted that there was a lot more evidence the Crown had pointed to and asked them to bear that in mind.
[16] It is inevitable after a lengthy trial, that the summary of the Crown’s case by the Judge will be relatively brief when compared with the evidence. In this case, the summary occupied four pages. It summarised the main thrust of the Crown’s case but obviously did not deal with all the evidence. We can see nothing in the summary which was unfair to Mr Toman. The Judge may have included some matters not mentioned by the Crown Solicitor in his final address, but it is not suggested that these were matters which did not arise from the evidence. If an error was made in respect of a particular motor vehicle it was a very minor matter in the context of this case, and could not lead to a miscarriage of justice. It was not, nor could it be suggested that the Judge failed to give the jury the normal directions on their role and their obligation to determine all matters of fact. They were told that if anything he said might be interpreted as a view about the facts, they should ignore those comments unless they independently came to the same view. There was, in our view, nothing exceptional or untoward in the summary of the Crown case.
[17] The summary of Mr Toman’s case occupied some three pages. This is not surprising. The Crown called 78 witnesses. Mr Toman did not himself give evidence although a statement he made to the police was introduced in evidence through a Crown witness. All the evidence was led by the Crown. Much of it was undisputed. It was the inferences which could be drawn from the evidence which were important. The Crown’s task was to present the evidence and suggest the inferences which could be drawn from it. On the other hand, the defence’s task was to cast doubt on those inferences. As a matter of logic, there was more to summarise in the Crown’s case than in the defence’s case.
[18] In the summary of the defence case, His Honour did comment on one or two aspects of the defence case in an unfavourable way. A Judge is entitled to do this although he or she should be careful to strike a balance. Mr Gill conceded that there were no vital omissions in the Judge’s summary of the defence case. The issue is one of balance. In our view, having read the summary of both cases, we are of the view that it cannot be said there was a lack of balance or unfairness. While another Judge may have given a more detailed summary of both cases, the manner in which the Judge summarised the respective cases did not lead to unfairness.
[19] Finally, it is necessary to consider whether all the matters raised in respect of the summing up, when taken in combination created an unfairness which is not apparent when each item is considered individually. In our view, the summing up was neither unbalanced nor unfair to Mr Toman. There was substantial circumstantial evidence against him and the Judge was entitled to refer to this evidence in some of his general directions, and in his directions on the elements of the case. When the matters raised are considered cumulatively, there are no grounds upon which it can be held that there was a miscarriage of justice.
Prejudicial material without probative value
[20] Mr Gill submitted that some evidence should not have been led as it was highly prejudicial and was of no probative value. Mr Moetu’s evidence was said to fall into this category. The submission was that he was called to show the jury that he was a very simple man and was someone who could be easily led by others such as Mr Toman. Mr Moetu was one of the alleged co-conspirators. It was known at the time of the trial that he would simply say he was convicted five times for selling cannabis in Wainuiomata, and that he would not give any evidence that either of the accused were involved with him in those sales. Mr Moetu acknowledged in evidence that on five occasions he had sold cannabis to police officers from the address. He refused to answer where he got the tinnie from. He denied ever seeing Mr Toman at the address. In some respects, his evidence could be seen as assisting Mr Toman. We do not accept that Mr Moetu’s evidence was prejudicial in the manner alleged on Mr Toman’s behalf. Further, this was a retrial and Mr Moetu had given similar evidence in the previous trial as well as at the preliminary hearing. The nature of the evidence which he was to give was known to Mr Toman and his counsel. No objection was taken either pre-trial or at the trial to the evidence being led. In the circumstances, there is no substance in this point.
[21] There was also evidence that some hydroponic equipment was found at Mr Toman’s address. There was also evidence of interference with an electrical metre and evidence that this was quite normal when cannabis was being grown hydroponically. By circumventing the meter, it was not possible to obtain evidence of power consumption for that purpose. The submission was that all evidence relating to the cultivation of cannabis should have been excluded, as it was prejudicial, but not relevant to the conspiracy charge. We accept that there is an argument for excluding this evidence on the grounds that it is not relevant to cultivation. Some Judges may have done so. However, we are also of the view that the evidence was relevant, probative and therefore presumptively admissible. Mr Toman faced three money laundering charges based on the sale of cannabis. The fact that he may have been a cultivator of cannabis, although not charged with cultivation in this proceeding, makes the evidence relevant. Further, it was evidence of Mr Toman’s involvement in the business of cannabis and was therefore relevant to the conspiracy charge. The appeal cannot succeed on this point.
Direction on standard of proof
[22] This ground of appeal was not based on His Honour’s standard direction in the summing up. There was no challenge to that. The challenge related to the answer to a question from the jury in the following form:
We seek clarification of reasonable doubt, ie. Is someone guilty/not guilty because it is highly likely/highly unlikely that they committed/did not commit a crime. Or alternatively, in addition could you please define reasonable doubt and give examples.
[23] It was submitted that His Honour fell into error when in his answer he said:
That is something squarely within the minds of individual jurors as to; do they have a doubt? If they do, is it reasonable? Proof beyond reasonable doubt is proof that leaves you firmly convinced of guilt. Now there are a few things in this world which we know with absolute certainty. In criminal cases the law does not require proof that overcomes every possible doubt. If, based on your consideration of the evidence, you are firmly convinced that the accused you are considering is guilty of the crime charged then you must find him guilty. But if, on the other hand, you think that there is a reasonable possibility that he is not guilty you must give him the benefit of the doubt and find him not guilty.
[24] The alleged error is that the Judge invited the jury to subject a doubt which may be entertained to further analysis or testing in order to determine its quality and whether it is reasonable. He directed the jury to essentially adopt a two tier approach, namely, to establish whether a doubt existed and then to subject the doubt to further analysis to see whether it was reasonable.
[25] We find no error in the Judge’s answer to the question. He noted that “proof beyond reasonable doubt is proof that leaves you firmly convinced of guilt.” The jury was advised that if it was firmly convinced that the accused was guilty of the crime charged, then it must find him guilty. This is an appropriate way to answer the question, and in doing so, the Judge avoided giving the examples requested of him. We do not accept that the Judge erred in this direction. We also note that read in context, the jury could not have been confused by the answer. Immediately before the portion of the answer quoted in paragraph 23 His Honour said:
The Crown must prove all the necessary elements of a charge beyond reasonable doubt. Proof beyond reasonable doubt means simply you must be sure, you must be satisfied, of guilt before you can convict. If you are not so sure if you are not so satisfied then you should acquit. But if you are sure and you are satisfied then equally you should convict. It is not appropriate for Judges to give examples of what is or is not a reasonable doubt.
This portion of the answer, which is similar to standard directions given by many trial Judges, when considered with the portion quoted in paragraph 23, would have left the jury in no doubt of the meaning of “proof beyond reasonable doubt.”
[26] For the reasons given, the appeal against conviction is dismissed.
Sentence appeal
[27] Mr Toman was sentenced on the count of conspiracy to four years imprisonment and on each charge of money laundering to a term of three years six months imprisonment, all terms to be served concurrently. His co-offender Mr Rangi was sentenced to a term of two years six months imprisonment on all three charges on which he was convicted, such terms to be served concurrently.
[28] The Judge, who had sat through a lengthy trial, determined that Mr Toman was a major player in a substantial drug dealing operation which occurred in Wainuiomata over a period of nearly two years. He determined that Mr Toman was the mastermind and Mr Rangi his lieutenant at a lower level, but nevertheless high in the chain. On a conservative estimate, the Judge determined that the operation yielded no less than $180,000 revenue over a one year period. The gain from that amount was at least $150,000. The total scale of the operation placed Mr Toman in the category of major drug dealing and laundering.
[29] The Judge also noted that the probation officer regarded Mr Toman as being a high risk of reoffending. He had not responded well to parole terms upon an earlier release. Mr Toman had been sentenced on 22 November 2001 for possession for supply of methamphetamine after being convicted by a jury. The supply had a value of somewhere between $26,000 and $52,000. After being arrested on this charge, Mr Toman was bailed and some of the present offending occurred while he was on bail. A District Court Judge, not knowing of the conspiracy and money laundering charges, sentenced Mr Toman to a term of two years three months imprisonment. The pre-sentence report showed that Mr Toman had 54 previous convictions, six of which were drug related. These convictions were spread over 11 years. The Judge assessed Mr Toman as being a drug dealer of some experience and standing and despite significant penalties, had continued to offend.
[30] The Judge considered the sentence on the totality principle. He took into account the sentence which Mr Toman would have likely received if he had been sentenced both on the charges before him, and on the methamphetamine charge on which he was sentenced in November 2001. He concluded that based on the authorities, he would have sentenced Mr Toman to between six years three months and six years six months imprisonment. This sentence would have taken into consideration the aggravating feature, namely, that after he was arrested on the charge of possession for supply of methamphetamine, Mr Toman continued to offend in respect of the cannabis conspiracy. Taking into account that Mr Toman had been sentenced to two years three months imprisonment on the methamphetamine charge, and that there were no mitigating factors, the Judge sentenced Mr Toman to a total of four years imprisonment. We understand that Mr Toman’s original term expired before he was sentenced in this case, but that he remained in prison on remand until the conspiracy trial.
[31] There were two main grounds for the sentence appeal. First, the disparity between Mr Toman’s sentence and that of his co-offender Mr Rangi. Secondly, the Judge’s application of the totality principle when he considered the combined effect of the total offending over the period.
[32] While we accept that the Crown brought the case on the basis that Mr Toman and Mr Rangi were co-conspirators, we do not accept that the Judge was wrong in differentiating between their roles and sentences. The Judge heard the evidence and formed the view that Mr Toman was the mastermind. Further, he was convicted of a laundering charge on which Mr Rangi was not convicted. Although Mr Rangi was sentenced to two and a half years imprisonment, the Judge considered that his offending warranted a term of imprisonment of three years, but because of the effect on Mr Rangi’s family, the Judge was prepared to be merciful and imposed a term of only two years six months imprisonment. In his view, this lower sentence reflected the difference between Mr Rangi and Mr Toman, not only in their respective roles in the operation, but also of their family circumstances and less serious criminal convictions. In our view, although Mr Rangi may have been treated leniently, this course of action was open to the Judge. The sentence of four years imposed on Mr Toman for the conspiracy and money laundering charges was within the appropriate range. Mr Gill conceded that the offending would fall within Category 2 of R v Terewi [1999] 3 NZLR 62, which would place the starting point between two and four years. Ms Feltham, for the Crown, submitted that it fell within Category 3 where the starting point would be four years or more. In our view, the commercial value as found by the Judge places this offending either at the top of category 2 or at the bottom of category 3. In either case a term of four years imprisonment is appropriate.
[33] The issue is whether there should have been a reduction of the term of imprisonment because of the totality principle. Mr Toman was found guilty of possession for sale or supply of methamphetamine at a time when he was also found to have in his possession 52.5 grams of cannabis. The methamphetamine was said to have a value between $26,000 and $52,000. In a cut state, this valuation would have been between $40,000 and $144,000. The District Court Judge, after noting that the jury found that Mr Toman had the methamphetamine for a commercial purpose, noted she thought it more likely that the methamphetamine was purchased partly for Mr Toman’s own use and partly for the purposes of sale. Mr Toman was addicted to the use of methamphetamine. Consequently, the commercial element to the offending was thought to be less than it might have been in some other circumstances. The Judge noted that in R v Wallace [1999] 3 NZLR 159, this Court determined that for smaller operations, but representing commercial dealing, starting points of up to five years were appropriate. Her Honour thought the starting point for the offending was three years. In order to acknowledge Mr Toman’s addiction which meant the commercial element may have been less than the personal use, she reduced the sentence to two years and three months imprisonment.
[34] The District Court Judge’s sentencing notes were before His Honour when he sentenced Mr Toman to four years imprisonment. A factor which he rightly took into account in the overall offending was that offending continued while Mr Toman was on bail. While we accept that normally a sentence on a totality basis would be less than the sum of the two individual sentences, if the individual offending is treated alone, we are of the view that in imposing a four year term, the Judge was not manifestly excessive. Drug offending while on bail was a factor to be taken into account. Therefore, although the sentence was in our view at the top end of the range, it was not manifestly excessive.
Result
[35] The appeals against both conviction and sentence are dismissed.
Solicitors:
The Crown Solicitor, Wellington
Gill & McAsey, Lower Hutt
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