The Queen v Minton

[2008] NZCA 161

IN THE COURT OF APPEAL OF NEW ZEALAND

CA684/07
[2008] NZCA 161

THE QUEEN

v

KELLY ANN MINTON

Hearing:22 May 2008

Court:Robertson, Wild and Ronald Young JJ

Counsel:P T R Heaslip for Appellant

N P Chisnall for Crown

Judgment:10 June 2008  at 2.30 pm

JUDGMENT OF THE COURT

THE APPEALS AGAINST CONVICTION AND SENTENCE ARE DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Ronald Young J)

Introduction

[1]       In March 2006 the police executed a search warrant at a house in Manukau.  They found equipment and chemicals said to be used in the manufacture of methamphetamine.

[2]       The Crown case was that the appellant, Ms Minton, along with her co-offender, resided at the house and was involved either as a party or principal in the manufacture of methamphetamine and the possession of various items of equipment and chemicals to be used to manufacture methamphetamine.

[3]       The jury convicted the appellant of manufacturing methamphetamine, possession of equipment capable of being used to manufacture methamphetamine, possession of precursors intended for manufacturing methamphetamine and possession of materials for manufacturing methamphetamine.  Justice Winkelmann, the trial Judge, sentenced her to five years’ imprisonment for the offending.  Ms Minton appeals against conviction and sentence.

Conviction appeal

[4]       Her appeal against conviction is based on the following grounds:

(a)The verdict of the jury, on the charge of manufacturing, is unreasonable or cannot be supported having regard to the evidence (s 385(1)(a) Crimes Act 1961);

(b)The verdict of the jury is unreasonable or cannot be supported having regard to the evidence on Counts 2, 3 and 4 given there was no or inadequate evidence of possession of the items by the appellant;

(c)The appellant did not have a fair trial because the Judge heard and determined some objections by counsel during the trial in front of the jury; and

(d)The Judge erred in her summing up by:

(i)mis-stating the law on possession;

(ii)mis-stating the elements to be proved on each count;

(iii)providing a faulty question sheet to the jury including a mis-direction on parties and principals; and

(iv)mis-stating the defence case to the jury.

[5]       During argument the appellant abandoned grounds (ii), (iii) and (iv).

Verdict of jury unsafe on manufacturing count

[6]       This submission is based on the claim that the material found at the house, as a result of the execution of the search warrant, could not have established beyond reasonable doubt that manufacturing had occurred at the house.  Nor was there sufficient evidence, it is submitted, that Ms Minton was either a principal or party to the manufacture at the house.  In those circumstances, she could not have been convicted of manufacturing methamphetamine.  Thus, the jury’s verdict was unreasonable or could not be supported having regard to the evidence.

[7]       We consider there was ample evidence available to the jury upon which to convict the appellant.  An ESR scientist, Ms Snow, went to the house subsequent to the execution of the search warrant.  Having examined the house and the equipment and having undertaken an analysis of the chemicals, she said she was satisfied they showed pseudoephedrine had been extracted and methamphetamine manufactured. 

[8]       She accepted she could not definitely say that the methamphetamine had been manufactured at the house.  However, she pointed to the quantity of equipment and chemicals, as well as chemical staining on a bench at the house, as supportive of the claim that the methamphetamine had been manufactured at the house.  She accepted two chemicals required for methamphetamine manufacture were not present, and nor was a heat source.

[9]       This evidence was sufficient, if accepted by the jury, to establish that methamphetamine was being manufactured at the premises where the equipment and chemicals were found.  Almost all of the chemicals and equipment necessary for manufacturing methamphetamine were present.  Ms Snow found methamphetamine residue on some of the equipment.  The jury was entitled to infer from that evidence – the presence of the chemicals, the equipment, the chemical staining and the methamphetamine residue at the house – that methamphetamine had been manufactured in the house.

[10]     As to the appellant’s involvement in the manufacturing, there was sufficient evidence, if believed by the jury, to be satisfied that the appellant had been involved in the manufacture.  The Crown case was based on two propositions.  First, that the house was the appellant’s residence or at least somewhere she regularly stayed.  There was evidence of personal documents in the house and the appellant had listed this particular address as her residence in her driver’s licence and passport.  Secondly, the appellant’s fingerprints were found on a dish in which methamphetamine and pseudoephedrine residue had been found.  Her fingerprints were also found on a glass condenser in the house.

[11]     The appellant gave evidence denying she was living at the house when the police undertook their search.  She said that while she had been residing there, she and her co-accused had broken up and she had left some days before.  The appellant gave an explanation as to why her fingerprints were on the dish and the glass condenser.

[12]     The jury clearly rejected her evidence and accepted the Crown evidence. The Crown evidence was sufficient to establish manufacturing at the house and that the appellant had been involved in the manufacturing.

[13]     The appellant also suggested that the Crown was asking the jury, when considering the evidence of manufacture, to choose between two inferences of equal weight.  Namely, that manufacturing was either undertaken at the house or elsewhere.  In those circumstances the Crown could not prove the manufacture had taken place at the house.

[14]     The Judge, when summarising the defence case, identified this submission.  She said:

[53]     I am now going to give you some guidance on your approach to some aspects of the evidence you have heard in this case.  The first thing I want to talk to you about is inferences, circumstantial evidence.  You will appreciate from having heard the evidence in this trial that really the key difference between the accused and the Crown in this trial is what inferences you can or should safely draw from the evidence you have heard.  The drawing of inferences is something you do every day.  It is simply a process of drawing conclusions from facts that you find to be proved.  Here there is no direct evidence to prove some elements of the offence with which the accused is charged.  There is no direct evidence that either accused were involved in manufacturing, such as eye witness evidence that they were seen doing it.  Similarly, there is no direct evidence about what each accused knew about the presence of various items and what they intended.  It is seldom the case that there will be direct evidence of what is going on in a person’s mind and people don’t normally say what they know and intend by their actions, so the Crown relies on what is called circumstantial evidence to prove such matters.

[54]     There is nothing inherently second rate or dubious about circumstantial evidence.  It simply involves the process to which I have already referred, that of drawing inferences or conclusions from evidence you regard as being reliable.  When a series of reliably established facts connect with each other in a way that carries conviction in your mind, that can result in proof beyond reasonable doubt.  By way of example in this case, the Crown asks you to infer that the accused were involved in manufacturing from the presence of items and materials associated with manufacturing, and the evidence which it says links each accused to some of those items, and to the premises.  Taken individually each of these facts may not prove much at all.  But if when you put them all together you find a series of otherwise inexplicable coincidences that as a matter of common-sense and logic the only conclusion you can come to is that the accused is guilty then that will be sufficient.  But if the cumulative effect of the individual facts does not reach that standard and still leaves gaps, then the evidence does not amount to proof beyond reasonable doubt.

[55]     As you have heard, the defence says that there is not enough evidence to satisfy you beyond reasonable doubt that the accused were involved in the manufacturing of methamphetamine, or in fact that any manufacturing of methamphetamine took place at those premises.  When you look at the evidence relied upon by the Crown, there are other inferences equally or more available to be drawn from that evidence.  It is entirely a matter for you whether you are satisfied that there is such a combination of those threads of evidence, those proven facts or events, that you are satisfied beyond reasonable doubt.  However, in going through that process of drawing inferences you must be careful not to speculate or guess.  The conclusions that you draw from the evidence must be rational and logical.  If, based on the same evidence, you think that two conclusions are equally open, then to choose between them would be to guess, and you must not do that.  In that event, you need to go back and consider whether there is any other evidence from which the Crown can prove its case.

[15]     The jury therefore, would clearly have understood the proper approach to inferences and circumstantial evidence in this case.  They would have understood the appellant’s case.  They were entitled to reject the appellant’s evidence and accept the Crown case.  If they accepted the Crown evidence, there was sufficient evidence upon which they could be satisfied that the appellant was involved in the manufacturing of methamphetamine at the house where the drugs and equipment were discovered.

[16]     The appeal against conviction is dismissed.

Sentence appeal

[17]     The Judge sentenced the appellant to five years’ imprisonment on the manufacturing count as the lead charge and imposed concurrent sentences of six months’ imprisonment on the other three counts.  The appellant submits the sentence of five years’ imprisonment was manifestly excessive because:

(a)       The Judge adopted too high a starting point;

(b)The possession of the equipment, chemicals and materials in counts 2, 3 and 4 were not aggravating features, as the Judge said.

[18]     It is argued that the Judge adopted too high a starting point because she made a series of factual errors at sentencing.  The errors are said to be:

(a)       Her assessment of the “quantum of methamphetamine found”;

(b)The scale of the manufacturing operation and whether it was ongoing;

(c)The period of past manufacture of methamphetamine;

(d)      The relevance of the zip-lock bags; and

(e)       Whether the appellant was as culpable as her co-accused.

[19]     It is submitted that if the Judge had correctly identified Ms Minton’s involvement and the extent of the manufacturing then an appropriate starting point would have been below band 2 of R v Fatu [2006] 2 NZLR 72, that is, below four years’ imprisonment.

[20]     In her sentencing remarks the Judge said that this was a medium scale operation but gave the appellant the benefit of the doubt and settled on the “smaller side of medium”.  She adopted a starting point of six years’ imprisonment on the low side of the middle of band 2 in Fatu (4-11 years).  The Judge’s assessment of the scale of operation was, as mentioned, based on the extent of the equipment and chemicals found at the house, together with the evidence of the ESR scientist.  In addition, the Judge said she took into account the presence at the house of 62 empty zip-lock bags, four sets of digital scales, waste and by-products of manufacture, and a methamphetamine recipe. 

[21]     As to the length of time over which the manufacturing had taken place, the Judge rejected the Crown argument that she could infer it had taken place throughout the year the appellant had occupied the premises.  She said there was “inadequate” evidence to justify this claim. 

[22]     As to the culpability between the two offenders, after considering a submission to distinguish this appellant’s involvement, she said:

[18]     I take the manufacturing of methamphetamine as the lead charge and treat the other offences with which you have been convicted as aggravating factors. I do not propose to distinguish between you as offenders. There is no basis on the evidence to do so. I said to Mr Tait that I regarded the role that you played Ms Minton, as significant in sentencing you and provided him with an opportunity to take your instructions as to whether you wished to provide further evidence to support your position that you had a more limited role than Mr Howe. Mr Tait took instructions from you and has confirmed that you do not wish to do so. I do not place any weight upon the location where the majority of the chemicals were found. You were found guilty of manufacturing methamphetamine and to take that into account would be inconsistent with the verdict. The same is true of the argument that you played a lesser role because you were not living at the address at the relevant time.

[23]     The Judge’s sentencing remarks illustrate that she had a proper evidential basis upon which to assess the extent and scale of the manufacturing and whether it was ongoing.  Zip-lock bags are commonly used to package methamphetamine and their presence was relevant.  The evidence supported the Judge’s conclusion that there was nothing to distinguish the involvement of the two accused. 

[24]     The appellant was offered the opportunity of a disputed facts hearing if she wished to provide evidence for what was claimed to be her limited role.  Mr Heaslip, in submissions before us, criticised the circumstances under which this opportunity was given to the appellant.  He said it was given too late in the process and it was unfair in the circumstances given the appellant was about to be sentenced.  We disagree.  Given the appellant maintained and still maintains her denial of any involvement in manufacturing methamphetamine, a disputed facts hearing was hardly feasible. 

[25]     The Judge adopted a modest starting point given her conclusions as to the extent of the manufacturing and the appellant’s involvement.  It was well within the range available to her.  

[26]     The appellant submitted that her convictions on counts 2, 3 and 4 were not aggravating features in sentencing when considering a proper starting point for the lead sentence on count 1.  The Judge expressly said that she took into account as aggravating the conviction on the other counts when setting a proper sentence for the lead offence.  Counsel for the appellant submitted that the chemicals, equipment and materials that made up counts 2, 3 and 4 were effectively those items that had made up the manufacturing count.  Thus, counsel submitted, it was effectively a form of double-counting to take into account possession of those items as an aggravating feature when setting the appropriate lead sentence for manufacturing methamphetamine.

[27]     The manufacturing count alleges past conduct.  Counts 2, 3 and 4 allege that the appellant was going to use the items identified in the three counts for future manufacturing of methamphetamine.  While some items, for example the equipment, were part of both count 1 and 2, the offending alleged is quite distinct.  The Judge correctly said that it is an aggravating feature, for the purpose of a proper starting point on the lead manufacturing methamphetamine count, that the appellant had chemicals and equipment which she intended to use in the future for further manufacturing of methamphetamine.

[28]     We are satisfied that the sentence imposed was well within the range available to the Judge and no error in the imposition of it was made.  The appeal against sentence is dismissed.

Result

[29]     Appeals against sentence and conviction are dismissed.

Solicitors:
Crown Law Office, Wellington