Toman v The Queen

[2004] NZCA 99

IN THE COURT OF APPEAL OF NEW ZEALAND

CA30/04

THE QUEEN

v

TERENCE MICHAEL TOMAN

Hearing:17 June 2004

Coram:Glazebrook J
Paterson J
Doogue J

Appearances:  S J Gill for Appellant

K G Stone for Crown

Judgment:24 June 2004 

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

[1]       Mr Terence Toman was convicted, along with other persons, following a jury trial in the Wellington High Court, of cultivating cannabis, having cannabis in his possession for the purposes of supply, and participating in an organised criminal group.  Prior to the trial, he pleaded guilty to the possession of a pistol.  The jury found him not guilty of producing pseudoephedrine and of possessing the same precursor with the intent of manufacturing methamphetamine.  He was sentenced by Frater J on 18 December 2003 to five years imprisonment, and now appeals against both his conviction on the cultivation of cannabis charge and the sentence of five years imprisonment.

Background

[2]       In November 2002, the police arrested Mr Toman and a co-accused, Mr Anderson, as they left premises in Naenae.  These premises had been under police surveillance.  There was within the premises 20 kilograms of cannabis drying on racks. 

[3]       At the time of his arrest, Mr Toman smelt heavily of fresh cannabis plant.  He was in possession of 100 empty point bags (small plastic bags of a kind used to distribute methamphetamine, but not of the kind used for cannabis), and a loaded semi-automatic pistol.  He also had in his possession a receipt for an oil heater which he tore in half before the police seized it.  The purchaser of the heater had given the name “James” for the purposes of the receipt, and the Crown case was that it was Mr Toman who purchased the heater for the purposes of drying cannabis.

[4]       The cannabis found at the Naenae premises had been cultivated at premises in Wainuiomata.  At the time the police searched the latter address, only the remnants of a cannabis cultivation enterprise were evident.  Mr Toman was not the occupant of the Wainuiomata premises but his fingerprint was found on a sheet of foil in a rubbish tin at that address.  The tenant of the property was his former partner and the mother of three of his children.

[5]       Mr Anderson gave evidence at the trial confirming that he alone had grown the cannabis and moved it to the Naenae property to be dried.  It was his evidence that Mr Toman only assisted him in the drying process.  Mr Toman did not give evidence.  He has not appealed against his conviction for possession of cannabis. 

[6]       The Crown’s case was that both Mr Toman and Mr Anderson were parties to a joint enterprise to cultivate and sell cannabis.  In addition to the fingerprint found on the tinfoil at the Wainuiomata premises, the Crown relied on the purchase of the heater, that Mr Toman went into the Naenae property on about 19 occasions on the day of his arrest, sometimes in the company of others, the smell of fresh cannabis which was on him when he was arrested, the possession of the loaded firearm, the finding in the pocket of a pair of jeans of a size which would fit Mr Toman a power bill for the Wainuiomata property, and that his former partner at the Wainuiomata premises had left a fingerprint on one of the plastic bags containing cannabis.  Another fact relied upon by the Crown was that Mr Toman and Mr Anderson were close associates, not only as members of the Mongrel Mob gang, but also to the extent that Mr Anderson had allowed Mr Toman to use the former’s bank account when Mr Toman did not or could not have one. 

Conviction appeal

[7]       There are two grounds of appeal:

a)The Judge did not put to the jury the defence case in relation to the cultivation charge; and

b)The Judge provided no assistance to the jury in relation to what use the jury could make of fingerprint evidence.

[8]       Mr Gill, for Mr Toman, submitted that the Judge neither referred to Mr Toman’s defence on the cannabis charges, nor specifically to the cultivation charge.  He noted that the Judge did refer to the defence case in respect of the precursor substances, and briefly to the case in respect of the participating in a criminal group, but made no reference at all to the cannabis charges.  Mr Gill accepted that the Judge adequately explained to the jury the elements of the charges. 

[9]       Mr Gill advised that Mr Toman’s case was that there was no evidence of him being a party to the cultivation, the fingerprint found on the tinfoil after the cultivation had been completed was, at best, equivocal, as the fingerprint expert conceded that the print could have been on the tinfoil before the cultivation if indeed the foil was ever used for that purpose, and the fact that the tenant and Mr Toman were former partners was not probative.  Further, the purchase by Mr Toman of a heater to dry the cannabis after it had been cut down and moved to Naenae was not evidence that he was involved in the cultivation, and the fact that he was assisting in drying the cannabis was not evidence that he had been involved in the cultivation.  At the hearing in this Court, Mr Gill confirmed that the defence had also relied on Mr Anderson’s evidence that he alone was the cultivator. 

[10]     Mr Stone, for the Crown, conceded that the Judge did not summarise Mr Toman’s defence in respect of the cultivation charge.  However, he submitted that in the context of this case, the jury would have been well aware of Mr Toman’s defence, which had not been a positive one. 

[11]     Before dealing with the Crown and defence cases, the Judge explained the elements of the various charges.  A memorandum had been prepared and distributed to the jury, and it dealt appropriately, not only with the elements of each charge, but also with “parties”, “aiding and abetting” and “joint enterprises”.  The Judge explained this memorandum to the jury during her summing up.  When explaining the portion on “aiding and abetting”, the Judge noted Mr Anderson’s evidence on growing the cannabis at Wainuiomata, and stated that if the jury accepted that evidence, they could not find the others guilty as parties.  When explaining the ingredients of the cultivation charge, the Judge noted that Mr Anderson had effectively admitted that he was guilty on that charge, and cautioned:

notwithstanding that, you need to be very careful not to let that affect your views about the position of the other accused who are facing this charge.  You need to go through the evidence that relates to them and to come to separate decisions about them.

[12]     When summarising the Crown’s case, the Judge noted that its position was that there was an obvious connection between the Wainuiomata and the Naenae property, and that it was impossible to separate the two; the Wainuiomata house was used as a factory for the cultivation of cannabis while the Naenae property was used as a place for the storage and preparation of illicit drugs for sale; and that the more difficult question was what part each accused played in each of the activities.  In summarising the Crown case against Mr Toman, the Judge noted the various points relied on by the Crown which we have summarised in paragraph 6 above.  The Judge’s summary noted that Mr Stone contended that all these points “connected him to the various crimes.” 

[13]     In dealing with the defence case the Judge noted that Mr Gill submitted that the police had made a complete mess of the case as the whole investigation was based on the misapprehension that there was a clandestine methamphetamine laboratory at Naenae.  The Judge’s summary of Mr Toman’s case was somewhat abbreviated, and part of it refers to the precursor and intent to manufacture methamphetamine charges.  There was a reference to his plea of guilty on the possession of the pistol count, and a submission that Mr Toman had ceased his payments to the Mongrel Mob which was an obvious reference to Mr Toman’s defence on the charge of being a member of an organised criminal group.  There was no reference to the cultivation of cannabis charge. 

[14]     We accept, as conceded by Mr Stone, that the Judge failed to put the defence case on the cultivation of cannabis charge or, for that matter, on the cannabis possession charge.  The issue is whether this deficiency led to an inadequate identification of the essential issues in this case. 

[15]     There is a useful summary of relevant cases in this Court’s decision in R v Foss (1996) 14 CRNZ 1.  The authorities referred to in Foss establish that while a Judge is required to deal with the evidence upon which the Crown relies, and to indicate its weaknesses and, at times, its strengths, it is not necessary to include in the summing up every criticism adduced on behalf of the accused.  So long as every question of fact is left open for decision by the jury, a Judge is not required to comment on all matters raised by the defence.  In some cases, it is sufficient for the Judge to refer in general terms to the issue raised by the defence, while in others, it may be necessary to refer to the salient factors and especially those upon which the accused relies. 

[16]     We accept that it would have been prudent and the usual practice for the Judge to have referred to Mr Toman’s defence on the cannabis charges.  However, this is not a case where the jury could have been in any doubt as to the elements of the charges and the issues involved.  The jury had a copy of the memorandum prepared by the Judge and it was explained to them.  The Crown’s case was that both Mr Toman and Mr Anderson were involved in a joint venture in the cultivation and distribution of cannabis.  Both properties were involved.  The jury was told that if they believed Mr Anderson’s evidence, Mr Toman could not be guilty of cultivating cannabis.  They knew that they were required to reach a verdict on the cultivation charge on the evidence which had been summarised to them by counsel in their final addresses. 

[17]     Mr Toman was represented by experienced counsel who put to the jury all matters which they were required to consider on behalf of Mr Toman.  In the circumstances, we are of the view that the sparse treatment of the defence case in respect of the cultivation charge could not have led the jury into error when considering the elements of the charge and the defence position.  The issues were squarely in front of them.  Further, it was not necessary in the circumstances for the Judge to refer to the fingerprint evidence.  When considered as a whole, the summing up adequately identified the essential issues in the case.  The jury would have been in no doubt of what Mr Toman’s defence was.  It is noteworthy that Mr Toman’s experienced trial counsel evidently did not consider the summing up inappropriate.  He did not raise any issues with the Judge when counsel were invited to do so at the end of her summing up.  In the circumstances, the conviction appeal cannot succeed. 

Sentence appeal

[18]     Mr Toman had a long list of previous convictions, including five for drug related offences.  Notwithstanding Mr Anderson’s evidence, the Judge was satisfied that both Mr Toman and Mr Anderson were equally involved in the operations, both at Wainuiomata and Naenae properties.  The same starting point was applied to each of them.

[19]     A starting point of four years imprisonment was fixed for the cannabis offences on the basis that the offending was either at the top of the second category or the beginning of the third category of R v Terewi [1999] 3 NZLR 62. The participation in an organised criminal group was taken as an aggravating factor which was seen to outweigh any mitigating factors, although this outweighing did not lead to an increase over the starting point. A concurrent sentence of 18 months imprisonment was imposed on the organised criminal group charge. On the possession of pistol charge, a starting point of 18 months was considered appropriate, a discount of six months was given for the guilty plea, and a cumulative sentence of twelve months imprisonment was imposed.

[20]     Mr Gill, for Mr Toman, submitted that the Judge erred in adopting a starting point of four years imprisonment on the cannabis charges, and in treating Mr Toman as an equal offender with Mr Anderson.  It was submitted that Mr Toman had a considerably lesser involvement than Mr Anderson, and that because of the amount of cannabis involved, the sentencing was out of line with the sentences given in Terewi and in R v Tony Smith (CA562/99, 23 March 2000). 

[21]     Mr Stone, for the Crown, submitted that in view of Terewi, a four year term of imprisonment was an appropriate starting point.  Further, the Judge was correct in making the term of twelve months imprisonment for the possession of the firearm a cumulative sentence.

[22]     Mr Anderson also appealed his sentence.  He was sentenced to a term of three and a half years imprisonment as he received a discount of six months to which Mr Toman was not entitled, and he did not face a possession of firearm charge. 

[23]     In this Court’s decision given on 23 June 2004 (R v Anderson CA27/04), appeal, this Court held that a starting point of four years imprisonment for the cannabis charges was appropriate.  This was criminality, either at the top end of category two of Terewi or at the bottom of the third category.  The Judge was entitled to take the view on the material before the Court that this was a substantial commercial cannabis operation, and that the quantity of cannabis found at the time of the arrest was merely the amount then in the hands of the offenders.  More than one crop had been grown.  Just as the Judge, having heard the evidence, was entitled to assess the criminality, we are of the view that she was also entitled to assess the respective roles of Mr Anderson and Mr Toman.  We are not persuaded that there should have been any differentiation in respect of the starting points. 

[24]     The Judge was entitled to consider the organised criminal group charges as an aggravating factor which, under the totality principle, justified a four year term of imprisonment on the charges other than the possession of pistol charge.  There is no challenge to the twelve months imprisonment imposed cumulatively for this latter charge.  In these circumstances the appeal against sentence cannot succeed.

Result

[25]     The appeals against conviction and sentence are dismissed.

Solicitors:
Gill & McAsey, Wellington, for Respondent
Crown Solicitor, Wellington