The Queen v Walsh

[2005] NZCA 281

IN THE COURT OF APPEAL OF NEW ZEALAND

CA195/05 CA248/05

THE QUEEN

v

TERRY ANTHONY WESTON

Hearing:         14 November 2005

Court:             O'Regan, Baragwanath and Doogue JJ Counsel:         G Mason for Appellant (CA195/05)

P S Coles for Appellant (CA248/05) M D Downs for Crown

Judgment:      21 November 2005

JUDGMENT OF THE COURT

AThe appeal against sentence (CA195/05) is dismissed.

BThe appeals against conviction and sentence (CA248/05) are dismissed.

REASONS

(Given by O’Regan J)

R V WESTON CA CA195/05 [21 November 2005]

Introduction

[1]    The appellant has two appeals before this Court which were heard together. In CA195/05, he appeals against sentences totalling seven years imprisonment imposed in the High Court at Palmerston North by Gendall J on 18 May 2005 in relation to one representative charge of supplying methamphetamine, one charge of possession of methamphetamine for supply, one charge of receiving and one charge of possession of a pistol. He had pleaded guilty to these charges in the District Court at Palmerston North on 21 April 2005 and had been remanded to the High Court for sentence.

[2]    In CA248/05, the appellant appeals against conviction and sentence in relation to a charge of possession of a Class C controlled drug (cannabis) for sale.  He was found guilty of this charge after a jury trial at the District Court in Palmerston North on  23  June  2005  and  was  sentenced  by  the  trial  Judge,  Judge Dawson, on 15 July 2005 to a term of nine months imprisonment, cumulative upon the seven year term imposed by Gendall J on 18 May 2005.

[3]    The sentence appeals overlap to some extent and it is convenient to consider them together. Before doing so, however, we will deal with the conviction appeal in CA248/05.

Conviction appeal

[4]    The appellant contends that two misdirections by the Judge in his summing up, although corrected before the verdict was taken, led to a miscarriage of justice.

[5]    The first misdirection occurred when the Judge was directing the jury on the requirements for proof of possession. The Judge mistakenly directed the jury that it was for the appellant to prove that the cannabis was not his (that he did not have

possession of the cannabis). Later he said that the appellant had to prove that he had the ability to control the use of the cannabis.

[6]    After the jury retired to consider its verdict at 12.51pm, these errors were drawn to the Judge’s attention. At 1.01pm, the members of the jury were recalled and a direction was made correcting the errors. No objection was raised on behalf of the appellant to the direction that was then given, which was in the following form:

[40]      The charge of being in possession of the cannabis is a charge that needs to be proved beyond reasonable doubt and the burden for proving that to the standard of beyond reasonable doubt is on the Crown to establish. If the Crown does establish that in your minds, then it is for the Accused to prove that none of that cannabis had been in his possession for the purposes of sale, but the standard of proof for the Accused is one of a balance of probabilities. In other words, of the two stories, which one do you believe.

[41]      Alright, so I will just go through that again to be absolutely clear. The charge of possession of the cannabis, beyond, is a standard of proof beyond reasonable doubt and the obligation is upon the Crown to establish that and if, and only if, they establish that, then it is the Accused to prove that none of that cannabis was in his possession for the purpose of sale. The Accused only needs to establish that on a balance of probabilities.

[7]In oral argument Mr Coles did raise an issue as to the last sentence of para

[40] which, if taken in isolation, would be problematic. However, we are satisfied that, when read as a whole, the direction made by the Judge to correct the error successfully achieved that objective.

[8]    A further issue then arose. It was apparent that the directions given by the Judge on the requirements for the appellant to rebut the statutory presumption of possession for the purpose of sale under s 6(6) of the Misuse of Drugs Act directed the jury in terms of this Court’s decision in R v Siloata [2005] 1 NZLR 182, rather than the contrary decision of the Supreme Court: R v Siloata [2005] 2 NZLR 145.

[9]    Counsel for the appellant also raised this issue with the Judge. The Judge indicated that the direction had been given in reliance on the Supreme Court decision in Siloata, and invited both Crown counsel and counsel for the appellant to make further submissions after having an opportunity to consider the Supreme Court decision. Both counsel then considered the decision and, having done so, sought to have the jury redirected in terms of a direction jointly prepared by counsel. Due to

the intervention of the lunch break the issue could not be addressed with the Judge as promptly as counsel sought, and the matter was not brought to the Judge’s attention until 2.00pm. The Judge then reviewed the Supreme Court decision himself and agreed that it was necessary that the jury be redirected on the issue. However by this time the jury had indicated to the jury attendant that a verdict had been reached.

[10]   The course adopted by the Judge was then to bring the jury back into Court (at 2.29pm) but not take a verdict from them until the further direction was given to the jury. The further direction that was given at that stage was in the following form:

[43]      Members of the Jury I understand that you may have come to a verdict but there is something else I want you to consider before you make a final decision. There has been recently a case before the Supreme Court in this country which has altered, to some extent, the burden of proof in cases like this where there can be a reverse presumption and I am not going to go into it in more detail than that in speaking to you, because it will only make it more complicated rather than easier to follow.

[44]      Counsel for the Crown and defence have prepared a written form which I have approved, which I am going to hand to each of you a copy of, to consider. And I want you to consider that before you come to your final conclusion. If that doesn’t alter your decision, so be it. If it does have an effect on your decision, then you may have to discuss what you have heard longer, and before you do, finally do come to your decision.

[45]      Now I am going to read it out to you but I will give it to you in written form as well. It is:

“If the Crown have proved beyond reasonable doubt that the Accused had more than 28 grams of cannabis plant in his possession then he is guilty, unless he proves that it is more likely than not that the cannabis was not for the purpose of sale. You have to decide which of the two factual contentions put by the Crown and the defence is more probable. There are two possible conclusions. One, if the Accused has satisfied all of you that none of the cannabis was for the purpose of sale, then the verdict is not guilty. Or two, if you all hold the views that the Accused has failed to satisfy you that none of the cannabis was for the purpose of sale, then the verdict is guilty. To return a verdict you must be unanimous as to one of those two options.”

[46]      Now to make it clear for you, as I say, you are going to have that in written form so you can sit that, sit down with that in front of you while you consider your verdict.

[11] No issue was taken with the direction that was provided pursuant to para [45]. Indeed, Crown counsel and counsel of the appellant had prepared the direction.

It is notable that the jury not only had the direction read to them, but also were provided with a copy of the direction in writing.

[12]   The jury then retired again to consider its verdict and reached its verdict a short time later.

[13]   Mr Coles said that there was a real risk of confusion in this case because of the combination of:

(a)The initial misdirection about possession and the necessary correction that was made some ten minutes after the jury had retired;

(b)The fact that the Judge had directed the jury that the appellant needed to establish that the drugs were for his own use exclusively in order to rebut the presumption, rather than establish that they were not held for the purpose of sale. Mr Coles acknowledged, however, that  the correct position was clearly stated in the previous paragraph, and was also correctly stated in para [40] of the initial correcting direction and para [45] of the second correcting direction;

(c)The directions that were made after the jury’s initial indication that a verdict had been reached were prefaced by the Judge’s comment that the Supreme Court decision in Siloata had altered the “burden of proof” in cases like this. And the Judge had also referred to the “reverse presumption”. Mr Coles said this was confusing because the direction did not deal with burden of proof (but rather the rebuttal of the presumption) and the direction concerned the reverse onus, rather than the reverse presumption.

[14]   Having considered the Judge’s directions, and in particular the efforts which the Judge made to correct the position once the misdirections were identified, we are satisfied that there is no real risk of a miscarriage of justice in this case. In our view, the corrections that were made negatived the earlier misdirections and ensured that the jury reached its verdict based on a correct statement of the law which had to be

applied. We do not think that the Judge’s reference to burden of proof and reverse presumption in the introduction to the second set of correcting directions is of any moment. What matters is the clear direction that was made as to the approach to be taken to the rebuttal of the presumption. That direction was provided to the jury in writing, as well as being read to them. There is no proper basis to conclude that the jury did not reach its verdict in accordance with that direction.

[15]The appeal against conviction in CA248/05 therefore fails.

Sentence appeals

[16]   As indicated earlier the sentence appeals are substantially inter-linked. The sentence appeal in CA248/05 is founded on the premise that the term of imprisonment imposed for the cannabis offending ought to have been concurrent with the term which had already been imposed in the High Court for methamphetamine and other offending. The appeal in CA195/05 is on the basis that the sentence imposed for the methamphetamine and other offending was manifestly excessive and that there should have been no minimum period of imprisonment. Of necessity, therefore, we must consider both sentencing exercises to determine whether the combined outcome (a total sentence of seven years nine months imprisonment, with a minimum non-parole period of four years) is manifestly excessive as a sentence for the totality of the offending covered by both CA195/05 and CA248/05.

[17]   Gendall J described the offending of which the appellant was being sentenced in the High Court (CA195/05) in the following terms:

[2]        The facts upon which I sentence you and which I have discerned from the transcripts of intercepted conversations and your record are as follows. You are a drug dealer. Between 20 July and 18 August 2004 under an interception warrant the police intercepted multiple calls and text messages from your cellular telephone from which it was apparent that you were dealing in methamphetamine on a substantial scale. A large number of telephone conversations and text messages intercepted over that period related to the supply of methamphetamine. Many, but not all, related  to street sales. Others showed that you were not simply a drug dealer in small amounts namely, dealing in point bags at street level, but you dealt in larger sums and quantities. As I have said, on occasions you sold in a small way,

but there are references in the intercepted conversations to your dealing in grams (worth $1,000 on retail) and half grams. There was particular reference on one occasion to you assisting a caller in the possible manufacture through advice of chemicals such as acetone and isopropylene, well-known to be used in the process by cooks. There is reference to you buying or seeking methamphetamine in bulk quoting prices of $450 for half a gram; being able to supply a customer with one gram; there is reference in the tapes to you saying that you “whacked over $15,000 to my normal guy”; and you were negotiating to acquire drugs on one occasion for $10,000 for “60g” and a reference to your claiming to be able to obtain grams “for 6 each” which is jargon for $6,000. There is reference also to you  complaining that on one occasion you lost $15,000 when explaining to another person your inability to make a supply at that particular time. The clear inference that can be taken from the conversations is that you were dealing in methamphetamine on a concerted basis over that month in a significant way.

[3]        The possession for supply count arises out of a search by the police of a hotel room on 21 July 2004, where you had left a half gram of pure methamphetamine, with a street value of $500, for a buyer, expecting her to collect it. But the police had intervened in the meantime, under a search warrant.

[4]        The receiving charges arise out of searches undertaken by the police at your premises. The first was on 11 June 2004. That is, before the interception operation took place. They found a laptop computer, printer and disc drive, which had a value of $8,000, which had been stolen some time between April and June 2004. After the interception concluded the police executed a further search warrant on 27 September at your address. They there located 35 wristwatches to a value approximately $1,200, which had been stolen between 4 and 6 September 2004, from business premises in Palmerston North. They also located a digital 20 inch LCD television and a remote control which had been stolen two weeks previously from business premises in Palmerston North. It had a value of $3,550. They also located a Plasma television valued at $8,000 stolen from Palmerston North  between 22 and 27 September.

[5]        The total value of the property in respect of the four receiving charges therefore exceeded $20,000. That suggests that you are either a major criminal receiver, operating over a short period or those valuable  items were exchanged in return for drugs. Your counsel says that you instruct him that they had nothing to do with drugs. If that is so they are therefore discrete and separate offences, although I have my doubts about that. The possession of the pistol charge also arises out of items found by  the police in executing a search warrant at your address. The pistol had an empty magazine but a number of rounds were located in your bedroom.

[6]        Your premises and other matters had all the trappings of significant drug dealing. The police search revealed you had a video  surveillance system connected to two external cameras in your bedroom enabling occupants to view vehicles and people outside and in the street. There was also a scanner tuned to a police channel. Apart from the pistol and ammunition that was found, your partner had $3,000 in cash which was stated as belonging to you and was surrendered to the police. In addition  you were found to be in possession of $1,094.20. You had a TAB account

which is well known to be a method by which dealers such as you achieve payments for sale of large quantities, and there is evidence in the transcripts of you referring to the TAB account in respect of one transaction said to be for a “g”. Point bag street dealers selling on the street do not receive payment through TAB accounts as you well know.

[18]   Mr Mason, who appeared for the appellant in relation to CA195/05, said that the Judge had formed a view as to the seriousness of the methamphetamine offending on the basis of an erroneous interpretation of the transcripts of intercepts made by the police, which had caused him to set too high a starting point. He said that the starting point which the Judge took (seven and a half years) for the charges of possession for supply of methamphetamine, supply of methamphetamine and unlawful possession of the firearm was too high, and should have been five or, at the most, six years. He did not take issue with the way the Judge dealt with mitigating and aggravating features, but said that the sentence should be lower to reflect the lower starting point, and that there should be no minimum period of imprisonment or, at least, the minimum period of imprisonment should be reduced commensurately with the reduction in the head sentence.

[19]   Counsel for the Crown, Mr Downs, accepted that the Judge had mistakenly interpreted references in the transcripts to dealing in controlled drugs other than methamphetamine (cannabis or cannabis related products) as referring to methamphetamine. He accepted that this had led the Judge to assess the offending as falling at the top of the second category described in the decision of this Court in     R v Arthur (2005) 21 CRNZ 453, and that that could not be sustained.   However   Mr Downs submitted that the appeal should not be allowed because, taken overall, the sentence was not manifestly excessive and that a different but justifiable approach could have led to the same result.

[20]   In relation to the sentence appeal in CA248/05, Mr Coles argued that the sentence should have been concurrent with the seven year sentence imposed earlier, not cumulative upon it. Counsel for the Crown, Mr Downs said that the imposing of a cumulative sentence of nine months imprisonment was not manifestly excessive, having regard to the totality principal, and that the final result of the sentencing processes in both cases was a sentence which was not manifestly excessive in the circumstances, and properly reflected the totality of the appellant’s offending.

Factual error

[21]   The summary of facts provided to the Judge at sentencing referred to the police interception operation. It said:

From 20 July 2004 to 18 August 2004, police intercepted all in and outgoing calls and text messages from and to Weston’s cellular phone…A total of approximately 5,000 communications.

During this time it became apparent that Weston was a dealer of methamphetamine to end users on a relatively substantial level.

Of the intercepted communications, 66 telephone conversations and 161 text messages related to the supply of methamphetamine over this period.

[22]   No estimate of the amount of methamphetamine sold by Mr Weston was made, and there was, apparently, no agreement between counsel for the Crown and counsel for the appellant on that issue.  Rather, the Judge was provided with some  66 transcripts of interceptions of phone calls, amounting to well over 100 pages. He was left to make an assessment of the amount of methamphetamine involved from this material. Mr Downs suggested that this was a type of disputed facts hearing, but we do not agree. The misinterpretation of the transcripts made by the Judge would not have happened if it had been.

[23]   Mr Mason said that the Judge misinterpreted the two aspects of the transcripts. The first was the reference at [2] of the sentencing notes (reproduced at

[17] above) to the acquisition of 60 grams of drugs for $10,000, which the Judge interpreted as referring to the acquisition of 60 grams of methamphetamine. It was, in fact, cannabis. The second was a later reference to the appellant having dealt in ounces of methamphetamine, again, this was incorrect and that reference was also to cannabis.

[24]   As noted earlier, the Crown accepted that the Judge’s placement of the offending at the top end of the second category described in R v Arthur could not be sustained once the errors were corrected. We accept that this is so. Given that the Judge’s sentencing proceeded on the basis of this error, we think that the appropriate course is for us to undertake afresh the setting of the proper starting point. We have the benefit of the Judge’s assessment of the aggravating and mitigating

circumstances, and the seriousness of a non-methamphetamine offending with which no real issue was (or could be) taken. We also have regard to the totality principle, now reflected in s 85 of the Sentencing Act 2002.

Starting point: methamphetamine

[25]   As noted earlier, the summary of facts gave an indication of the scale of the offending by reference to the number of telephone conversations and text messages relating to supply of methamphetamine, and contained the statement that the appellant was a dealer of methamphetamine to end users on a reasonably substantial level.

[26]   It is clear that, given the very large number of transactions in which the appellant was involved during the period that his cellphone was subject to the interception, the offending in the present case fell with category two of R  v Arthur  (5 -250 grams). Even if the very large number of transactions involved only the standard minimum quantity for retail supply (1 point), the amount involved would be in excess of 10 grams. It is clear from the Judge’s assessment of the transcripts,  other than those with which issue has been taken, that some transactions were of a greater magnitude. This was accepted by Mr Mason, and indeed had been accepted by the appellant’s then counsel in the High Court.

[27]   However it was suggested that the offending fell between the middle and lower end of category two of Arthur, not at the top end of that category. Mr Mason suggested that the starting point for the methamphetamine offending ought to have been four and a half years. We do not agree.  In our view the offending in the  present case showed a level of sophistication and commerciality, and was of a scale which placed it at least in the middle of the second band in Arthur. In our view the appropriate starting point, for the methamphetamine offending only, was six years. The separate charge of supplying methamphetamine related to a small amount, and does not affect the overall starting point.

[28]   It is necessary then to look at the receiving charge, which the Judge said was of a scale to suggest that the appellant was either a major criminal receiver, or that

items were being exchanged in return for drugs. Either way, it was serious offending and the Judge imposed a sentence of two years imprisonment. In addition he imposed a sentence of 18 months’ imprisonment for the charge relating to the possession of the pistol which, the Judge said, had “sinister connotations when associated with drug dealing”. Thus, on a cumulative basis, it would have been open to the Judge to set a starting point in the order of nine and a half years.

[29]   The Judge found no mitigating features other than the guilty pleas, and no issue can be taken with that. However, he found that there were significant aggravating features relating to the appellant. In particular:

(a)The appellant had 120 previous convictions which the Judge said suggested he was “an incorrigible criminal”. Of these, 21 were drug related convictions, including one which had resulted in a term of imprisonment for four years six months in 1999. It was clear that a deterrent sentence was called for in view of the apparent failure of previous sentences to deter the appellant.

(b)The appellant had been sentenced as recently as 2 September 2004 to charges of possession of ammunition, procuring methamphetamine and possession of utensils for the use of methamphetamine.

[30]   In the light of those aggravating features, particularly the appellant’s appalling record and his very high number of previous drug offences, the starting point could reasonably have been increased to ten and a half years if sentencing had been undertaken on a cumulative basis. In addition, it is appropriate to bring into account the cannabis offending which is the subject of appeal CA248/05, in respect of which a starting point of 18 months’ imprisonment was taken, on the basis that the offending fell within category two in R v Terewi [1999] 3 NZLR 62.

[31]   Taking into account all of these matters, and putting to one side for the moment the totality principle, a starting point of around 11 years, is open, and when this is adjusted to reflect the aggravating features, it could be as high as 13 years. From this it would be necessary to give credit for the guilty pleas on the offending

dealt with in CA195/05, taking into account that the evidence was such that convictions were inevitable. Making appropriate allowance for this would reduce  the overall sentence on a cumulative basis to approximately ten years.

[32]   It is then necessary to bring into account the totality principle, assessing a sentence which appropriately reflects the totality of the offending in the light of the aggravating and mitigating circumstances. In our view an overall sentence of at least seven years and nine months properly reflects the gravity of the overall offending, in the light of those factors.

[33]   In those circumstances, we see no reason to alter the sentence as passed by Gendall J and Judge Dawson, and dismiss the appeals against sentence.

[34]   We agree with Gendall J that a minimum non-parole period of four years was appropriate in the present case, having regard to the requirements of s 86 of the Sentencing Act 2002, for the reasons he gave at sentencing. We therefore dismiss  the appeal against the imposition of that minimum period of imprisonment as well.

Result

[35]All of the appeals are dismissed.

Solicitors:

Crown Law Office, Wellington