The Queen v Rogers

[2007] NZCA 286

IN THE COURT OF APPEAL OF NEW ZEALAND

CA465/06
CA8/07
[2007] NZCA286

THE QUEEN

v

MORRIS NORMAN STANLEY ROGERS
CHRISTOPHER CLAUDE O'HARA

Hearing:25 June 2007

Court:William Young P, Randerson and Panckhurst JJ

Appearances:  J Soondram for Mr Rogers

A Speed for Mr O'Hara
K Raftery for Crown

Judgment:11 July 2007 at 11 am

JUDGMENT OF THE COURT

A        THE CONVICTIONS ON COUNT 4 ARE QUASHED.

B        OTHERWISE, THE CONVICTION APPEALS ARE DISMISSED.

CThe effective sentences of nine years imprisonment are reduced to eight and a half years imprisonment.

DThe minimum period of imprisonment is reduced from five years to four years nine months.

____________________________________________________________________

REASONS OF THE COURT

(Given by Panckhurst J)

THE APPEAL ISSUES

[1]       Following a trial in the High Court at Auckland the appellants were found guilty of seven counts associated with the manufacture, possession and supply of methamphetamine, and having a firearm for use in connection with its manufacture, in October 2005.  These offences occurred at Howick.  In addition, Mr O’Hara was found guilty of three offences relating to the possession of equipment, materials or precursor substances capable of being used in the manufacture of controlled drugs.  These offences also occurred in October 2005, but at Sergeants Road, Matakawau.

[2]       The appeal is against conviction and sentence.  With reference to the conviction appeals the appellants contend that the conviction upon the charge of manufacturing methamphetamine on board a boat at Howick is unsafe, because the evidence as to the place of manufacture is equivocal.  The conviction for having a firearm, while manufacturing methamphetamine and in circumstances that showed an intention to use it in connection with that crime, is challenged on the footing that both the evidence and the trial Judge’s directions to the jury were deficient, with the result that a miscarriage has occurred.

[3]       Three points were raised in support of the sentence appeals.  The first was that the sentences received by both appellants (nine years imprisonment) required review in the event that either, or both, of the conviction appeal contentions succeeded.  Alternatively, counsel contended that the lead sentence of nine years imprisonment imposed on the manufacturing charge was clearly excessive in light of the guidelines contained in R v Fatu [2006] 2 NZLR 72 (CA). The third argument was directed to the minimum period of imprisonment (five years for each appellant), which was challenged as inappropriate in all the circumstances.

Some further background

[4]       On 14 October 2005 Mr O’Hara rented a boat berth in a marina at Howick.  He also rented a motel room situated only metres away from the marina.  A launch, the “Ciera”, was immediately moored at the berth. 

[5]       As at 17 October 2005 Mr Rogers and his partner were occupants of the boat.  In the early hours of that morning the police were called to the marina by a security guard on account of a disturbance involving Mr Rogers and his partner.  Mr Rogers was requested to go to the Howick Police Station.  He agreed.  Subsequently, while obtaining some clothing, Mr Rogers endeavoured to escape from the police via the front hatch of the vessel.  He jumped into the sea, but then made his way back to the berth.

[6]       A wallet which Mr Rogers dropped as he made to escape was found to contain $19,400 in cash.  A search of the boat by police officers resulted in the location of 34.1 grams of methamphetamine and of a range of items required in the manufacture of that drug.

[7]       On 18 October the police searched Mr O’Hara’s home at Sergeants Road, Matakawau.  They found, and seized, various items suitable for use in drug manufacture, including precursor substances.

[8]       The case was tried before Venning J and a jury over a period of about two weeks commencing on 25 September 2006.  Guilty verdicts were returned on all charges.

Count 3: Was there evidence sufficient to establish methamphetamine manufacture on board the “Ciera”?

The arguments and the evidence

[9]       Mr Soondram for Mr Rogers assumed the initiative with reference to this aspect of the case.  He accepted that the raft of items found on board the “Ciera” had been used in the manufacture of methamphetamine at some time and place.  Instead, the gist of the argument was that a properly directed jury could not reject the reasonable possibility that the incriminating items had been used for manufacture elsewhere, and were brought on board the “Ciera” after the event.  Our attention was drawn to the evidence of an ESR scientist, to which we will refer shortly.  Counsel also relied on the circumstantial evidence, in particular that Sergeants Road was found to contain a somewhat similar array of items suitable for use in a clandestine laboratory.  Mr O’Hara had purchased the “Ciera” for $139,000, paid in cash, in June 2005.

[10]     Mr Speed was content to adopt the submissions made by Mr Soondram in relation to this aspect.  As can be seen, Mr Soondram’s argument included the proposition that the items found on board the “Ciera” may have been transferred there after previous use, perhaps at Sergeants Road.  However, this did not pose a problem for Mr O’Hara, because the manufacturing count alleged an offence committed at Howick on or about 17 October 2005.  Venning J, on 28 September 2006 (the fourth day of the trial) declined an application by the Crown to amend the place of the alleged manufacture from “at Howick” to “at Auckland”.  The Judge concluded that, given the way in which the defence case had been run, it was too late for the Crown to seek an amendment to this effect.  Accordingly, the defence that the manufacture may have occurred elsewhere, was open.

[11]     Counsel’s acceptance that there was sufficient evidence to enable a jury to find that the items on board the “Ciera” comprised a clandestine laboratory which had been used at some point in time, was well made.  The items included all of the chemicals and precursor substances required for a manufacture of methamphetamine, save for iodine.  There was also equipment sufficient to facilitate the process of manufacture, including a condenser and a gas burner on which traces of methamphetamine were located.  Containers part-filled with caustic liquids of a kind consistent with the manufacture of methamphetamine were also found.  Although there was no iodine found on board the “Ciera”, some was found at Mr O’Hara’s home.

[12]     An ESR scientist, Mr Meyn, gave evidence concerning the items found both on the boat and at Sergeants Road.  With reference to the former he said that he could not affirmatively say whether a manufacturing process had taken place on board.  The highpoint of his evidence was (p 200):

Based on the evidence found and the glassware set up inside the boat, this suggests that methamphetamine could have been manufactured on the boat.

To earlier questions Mr Meyn said that swabs were not taken from the inside of the cabin walls in an endeavour to find traces of methamphetamine. 

[13]     Based on the scientist’s evidence and the other circumstantial evidence to which we have referred, defence counsel mounted a challenge to the Crown case that the “Ciera” was proved to have been the site of methamphetamine manufacture.  Various witnesses were cross-examined concerning the stability of the vessel, the degree of ventilation available and, generally, whether it was feasible to conduct a dangerous process of manufacture within the reasonably confined area of a motor launch.

[14]     Mr Raftery submitted that there was sufficient evidence of manufacture having occurred on board the boat.  Our attention was particularly drawn to filtration residues and liquid residues which were found, and which the scientist explained were residues of the very kind associated with the manufacturing process.  There was also evidence which established movements to and from the boat by Mr O’Hara, who was staying at the nearby motel.  At interview, he gave the explanation that it was an engine problem which gave rise to the need for him to be so close at hand and to visit the boat.

Discussion:  was the evidence sufficient?

[15]     We are satisfied that whether manufacture had occurred on board the “Ciera” was quintessentially a jury issue.  When, at a comparatively early stage in the trial, the Judge declined the Crown’s application to amend the indictment, the issue of whether the evidence was sufficient to establish manufacture on board was clearly on the table.  The cross-examination, the addresses and the summing-up confirm as much.  By the verdict, the jury expressed itself sure that there had been a manufacture on board.

[16]     We are unpersuaded that the evidence was insufficient to enable this conclusion to be reached.  A close examination of the photographs taken on board the “Ciera” was telling.  These depicted an array of items in situ and in circumstances indicating the items had been used in a recent process of manufacture.  By contrast, there was little or nothing which was indicative of a clandestine laboratory in storage, after use elsewhere.  A strong inference was available from the presence of the liquid and filtration residues.  Movement of residues of this kind after a manufacture at some other place, and particularly onto a boat, defies belief. 

[17]     For these reasons we reject this ground of appeal.

Count 4: Did the appellants have a firearm with them for use in connection with the manufacture of methamphetamine?

The argument

[18]     Mr Speed argued this aspect of the appeal.  He submitted that the evidence was insufficient to implicate Mr O’Hara, in that the evidence did not establish he was aware of the firearm being on board the “Ciera”.  In addition, counsel contended that the charge lacked “a logical reasonable basis in fact”.  There was, he argued, no logical connection between the use and availability of a firearm on the one hand, and the manufacture of methamphetamine on the other.  A further aspect of the argument was that the trial Judge’s directions to the jury concerning the accused having a firearm with them for use in connection with the crime of manufacturing methamphetamine, was deficient, in that the requirement of immediacy (that the presence of the firearm was known to both accused and immediately available for their use), was not explained. 

[19]     Nor, it is said, did the Judge point out the need that the firearm was at hand in connection with the manufacturing of methamphetamine, as opposed to its being available in connection with subsequent possession of, or dealing in, that drug.  This, Mr Speed submitted, was a more logical explanation for the presence of the firearm, although it was not something which lay in the mouth of defence counsel (given the accused’s denial of knowledge of the firearm).  The Judge had a responsibility to raise this reasonable possibility for the jury’s consideration.

The evidence

[20]     The firearm was a small Smith & Wesson pistol.  It was located beneath a blanket on a berth adjacent to the main cabin.  There were five live rounds in the chamber and a further 28 rounds were found in a foot locker.  The pistol was in working order.  The serial number had been removed.

[21]     The Crown case was that Mr Rogers, as a resident of the boat, and Mr O’Hara, as the boat’s owner and a frequent visitor to the vessel, must have known of its existence and its availability for immediate use.  However, both accused denied knowledge of the pistol, and pointed to the fact that it was not found in the initial police search, but only subsequently when the “Ciera” was the subject of a second search. 

Discussion

[22]     We are of the view that the convictions on this count are unsafe.  That conclusion is prompted by two considerations.  At least in the circumstances of this case, we consider that fuller directions were required concerning the element of having a firearm in connection with another crime.  The Judge explained to the jury that to establish this charge the Crown must prove three elements (at [57]):

First, the accused were committing the crime of manufacturing methamphetamine.

Second, that while committing the crime of manufacturing methamphetamine the accused had a firearm;  and

Third, that the accused had the firearm in circumstances that prima facie showed an intention to use it in connection with the crime.

[23]     In a handout which was given to the jury and which contained three issues for their determination, the second issue was framed in these terms:

While engaged in the manufacture of methamphetamine did the accused have possession of a firearm?

[24]     The concept of possession was explained elsewhere, in relation to count 2, being a charge of possession of methamphetamine for the purpose of supply.  But, the Judge did not explain the gist of the element of having a firearm in connection with the commission of another crime.  Indeed, in the issues sheet he substituted the concept of possession for the statutory requirement that an accused, while committing any other crime, “has” a firearm with him or her in circumstances that prima facie show an intention to use it in connection with that crime: s 198B of the Crimes Act 1961. 

[25]     Knowledge of the whereabouts of the firearm is plainly a first prerequisite.  But, possession of the firearm may not be enough.  Possession typically connotes either physical custody, or control.  But for a person to have a firearm with them also requires evidence of “a very close physical link and a degree of immediate control over the weapon …”: R v Kelt [1977] 3 All ER 1099 (CA), cited with approval in R v Manapouri [1995] 2 NZLR 407 (CA). This added aspect of immediate control was not explained in this instance. We consider it needed to be.

[26]     The offence of “Commission of [a] crime with [a] firearm” contrary to s 198B requires proof that an accused either:

(a)     in committing any crime, uses any firearm; or

(b)while committing any crime, has any firearm with him or her in circumstances that prima facie show an intention to use it in connection with that crime.

There must be actual use of the firearm in committing the other crime, or the firearm must at least have been immediately available to that end.  Put another way, the firearm must be “at hand” while the substantive offence was committed, and the circumstances must be such as to demonstrate the accused’s intention to use it in connection with that crime, if need be.  Hence, both immediate availability and a specific intent, are further prerequisites.

[27]     Our second concern relates to the elaboration of the respective cases by the Judge in summing-up.  The Crown case was summarised on the basis that the gun was there, and loaded, to be used to protect the accused if anything went wrong in the course of the commercial manufacture of methamphetamine.  The defence case was summarised on the basis the accused said they did not know that the gun was there and that its presence was not readily apparent, as shown by the failure to notice it in the initial search.  Venning J added:

[75]   You might well conclude that whoever was involved in the manufacture of the methamphetamine would have the gun for the purposes of protecting their operation but that is a matter of fact for you.

[28]     We think that the circumstances of this case raised a serious issue concerning which crime the pistol was intended to facilitate, if need be.  Particularly if the process of manufacture was undertaken away from the marina, in some less public place, then the use of a firearm to facilitate the commission of that offence becomes a somewhat unattractive proposition.  But, the carriage of a firearm in the context of subsequent drug dealing is a tenable and logical interpretation, and one to which the jury should have been alerted by the Judge, if not by defence counsel. 

[29]     For these reasons we consider that the risk of a miscarriage of justice is such as to require us to quash the convictions of both accused on count 4.

The appeals against sentence and the MPI

[30]     The appellants were sentenced separately.  However, the approach of Venning J was similar in both cases.  Venning J was satisfied that the prisoners were equally involved in a significant commercial methamphetamine operation.  He described the “Ciera” as “a floating methamphetamine lab”.  With reference to the methamphetamine offending the Judge fixed a starting-point of eight and a half years imprisonment.  To this he added an uplift of six months imprisonment on account of there being a firearm at hand while the methamphetamine was manufactured.  Nine years also became the effective sentence, because there were no personal mitigating factors which availed the appellants.  The lead term was imposed on the manufacturing charge, with lesser concurrent terms on the other charges.

[31]     The key argument with reference to the sentence of nine years imprisonment was that the starting-point of eight and a half years was too high in terms of Fatu.  Messrs Soondram and Speed pointed particularly to the total amount of methamphetamine seized (34 grams).  While accepting that the appellants fell within band 2 of Fatu, which is reserved for manufacturing operations up to 250 grams and therefore warranting four years to 11 years imprisonment, a starting-point of eight and a half years imprisonment in the circumstances of this case was criticised as clearly excessive.

[32]     We disagree.  The appellants’ submission involves a wrong focus.  While this Court in Fatu opted for sentencing bands based on an objective criteria, being the quantity of the drug involved in the offending, this does not mean that the amount of methamphetamine actually seized is automatically determinative of the appropriate starting-point.  Of course, the amount of the drug seized is an important consideration.  But, the quantity of the drug which a manufacturer is holding at the time of a police search represents but a snapshot at a moment in time.  It remains for the sentencing Judge to also evaluate the wider circumstances.

[33]     Here, there were very substantial quantities of chemicals and precursor substances located on board the “Ciera”.  This included 502 tablets of pseudoephedrine and 1800 “Contact NT” capsules, which prompted the scientific estimation that between one to one and a half kilograms of methamphetamine, valued at $600,000 to $1,000,000, could have been manufactured from the seized material.  The Judge was required to bring this dimension of the Crown case to account.  Rightly, in our view, he characterised the “Ciera” as a floating methamphetamine lab.  Effectively, the boat was geared up for the manufacture of very substantial quantities of methamphetamine.  This wider evaluation of all the circumstances properly identified the true scale of the appellants’ manufacturing operation.  In the end result the Judge did not adopt a starting-point beyond the range identified in band 2 (reflective of the potential yield of methamphetamine), but instead opted for a starting-point which quite conservatively reflected the actual scale of the operation.

[34]     Our decision to quash the convictions in relation to count 4 means that the uplift from the starting-point of eight and a half years imprisonment for manufacturing, to a total of nine years imprisonment, requires reconsideration.  Arguably the presence of the pistol on the “Ciera” could still warrant some recognition as an aggravating feature of the manufacturing offence, but we think that the safe and appropriate course is to reduce the effective sentence by six months imprisonment.  It follows that the lead sentences become eight and a half years imprisonment.

[35]     The argument in relation to the minimum period of imprisonment of five years, was based on R v Anslow CA182/05 18 November 2005.  In that case this Court considered a schedule of over 70 previous decisions given in serious drug cases.  A near uniform pattern emerged, namely that minimum periods of imprisonment were seldom ordered where  the finite term was less than nine years, but were more common in relation to sentences above nine years imprisonment.

[36]     We are unpersuaded that Venning J was wrong to impose MPIs in relation to the appellants.  They are mature men.  Each had a comparatively recent conviction for a drug-related offence.  But, the dominant consideration in relation to the imposition of an MPI was the very serious nature of the offending.  Venning J, with the advantage of having presided over the trial, was best placed to make the assessment required in terms of s 86 of the Sentencing Act 2002.  It is not shown that his decision to impose a minimum term was wrong.  However, we adjust the duration of the minimum term to reflect the quashing of the convictions on count 4, and in order to maintain the proportionality approach of the trial Judge.  We therefore substitute a minimum term of four years nine months in relation to each appellant.

Solicitors:

Crown Law Office, Wellington