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,…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading The Queen v Rogers

Details

AGLC: The Queen v Rogers [2007] NZCA 286
Case: [2007] NZCA 286
Decision Date: 11 July 2007

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the case of The Queen v Rogers and O'Hara involved an appeal against conviction and sentence by the two appellants, Morris Norman Stanley Rogers and Christopher Claude O'Hara. The appellants were found guilty of multiple counts associated with the manufacture, possession, and supply of methamphetamine, as well as having a firearm for use in connection with its manufacture. The appeal was against conviction and sentence, with the appellants contending that the conviction for manufacturing methamphetamine on board a boat at Howick was unsafe due to equivocal evidence, and the conviction for having a firearm while manufacturing methamphetamine was deficient in evidence and trial Judge's directions. The court held that the evidence was sufficient to establish methamphetamine manufacture on board the boat, but the convictions for having a firearm were quashed due to deficient evidence and directions.

The court found that the evidence was sufficient to enable a properly directed jury to conclude that there had been a manufacture on board the boat. The presence of liquid and filtration residues strongly indicated that a manufacturing process had occurred on board, and it was highly unlikely that such residues would be moved after manufacture at another location. Therefore, the convictions on this count were upheld. However, the convictions for having a firearm were quashed due to insufficient evidence and deficient trial Judge's directions. The court found that the Judge had not adequately explained the requirement of immediacy and the need for the firearm to be at hand in connection with the manufacturing of methamphetamine, as opposed to its being available for subsequent possession or dealing in the drug.

In relation to the sentence appeals, the court found that the starting-point of eight and a half years imprisonment was not clearly excessive in light of the guidelines in R v Fatu. The court considered the wider circumstances, including the substantial quantities of chemicals and precursor substances located on board the boat, which indicated the true scale of the appellants' manufacturing operation. The court reduced the effective sentence by six months imprisonment and adjusted the minimum period of imprisonment to four years nine months in relation to each appellant.

Orders