Tran v R

[2010] NZCA 349

IN THE COURT OF APPEAL OF NEW ZEALAND

CA92/2010
[2010] NZCA 349

BETWEENMINH HUY TRAN

Appellant

ANDTHE QUEEN

Respondent

Hearing:21 July 2010

Court:O'Regan  P, Panckhurst and MacKenzie JJ

Counsel:M B Meyrick for Appellant

F E Guy Kidd for Respondent

Judgment:4 August 2010 at 12.30 pm

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.

REASONS OF THE COURT

(Given by MacKenzie J)

Introduction

[1]        The appellant stood trial in December 2009 in the District Court at Auckland before Judge Paul and a jury on one count of importing the Class C controlled drug pseudoephedrine, three counts of possession for sale of pseudoephedrine, one count of possession of equipment capable of being used in the manufacture for methamphetamine, and one count of possession of two pipes for the purpose of consumption of methamphetamine.  The importation and possession for sale counts were faced jointly with Ms Yu, who pleaded guilty before trial.  The appellant was found guilty of the three possession for sale and the possession of pipes counts.  He was acquitted on the importation and possession of equipment counts.  He was sentenced in January 2010 to six years imprisonment.  He appeals against both conviction and sentence.

Factual background

[2]        The facts were that a shipment of marble tiles arrived in New Zealand from China in January 2008.  It was inspected by Customs and became the subject of a controlled delivery.  The freight forwarding company had difficulty ascertaining a delivery address and were given the appellant’s mobile telephone number.  The appellant arranged for Ms Yu to meet the delivery truck and direct it to an address in Mt Albert Road.  Police conducted a search of the address later that day.  They found the appellant and Ms Yu surrounded by broken marble tiles and packages of ContacNT capsules containing pseudoephedrine in a pillowcase and in shoe boxes, with some still secreted in unbroken tiles.  The total quantity of ContacNT was admitted at trial as weighing 45.76kg, and was described by the Judge at sentencing as containing 37kg of pseudoephedrine, having a potential yield of 7.5 to 11.2kg of methamphetamine, with a street value of $7.5 to $11.2m.  A “parr bomb”, that is, a high pressure reaction vessel commonly used in the manufacture of methamphetamine, was found in a van at the address.  Two glass pipes of a type used for the consumption of methamphetamine were located in a garage at the rear of the address.

The grounds of appeal

[3]        On the possession of pseudoephedrine for supply counts there are two grounds of appeal.  The first is that the trial Judge misdirected the jury on the presumption in s 6(6) of the Misuse of Drugs Act 1975 (the Act).  The second is that the trial Judge erred in allowing the admission in evidence of certain text messages to and from two mobile telephones which were found in the possession of the appellant at the time of the search. 

[4]        On the possession of the methamphetamine pipes count, it is submitted that it was not open for the jury to convict the appellant on the evidence. 

The presumption

[5]        The appellant was charged under s 6(1)(f) of the Act with possession for sale.  Section 6(1) provides:

Except as provided in section 8 of this Act, or pursuant to a licence under this Act, or as otherwise permitted by regulations made under this Act, no person shall—

(a)Import into or export from New Zealand any controlled drug, other than a controlled drug specified or described in Part 6 of Schedule 3 to this Act ; or

(b)         Produce or manufacture any controlled drug; or

(c)Supply or administer, or offer to supply or administer, any Class A controlled drug or Class B controlled drug to any other person, or otherwise deal in any such controlled drug; or

(d)Supply or administer, or offer to supply or administer, any Class C controlled drug to a person under 18 years of age; or

(e)Sell, or offer to sell, any Class C controlled drug to a person of or over 18 years of age; or

(f)Have any controlled drug in his possession for any of the purposes set out in paras (c), (d), or (e) of this subsection.

[6]        The Crown relied upon the presumption in s 6(6) of the Act, which provides:

For the purposes of subsection (1)(f), a person is presumed until the contrary is proved to be in possession of a controlled drug for any of the purposes in subsection (1)(c), (d), or (e) if he or she is in possession of the controlled drug in an amount, level, or quantity at or over which the controlled drug is presumed to be for supply (see section 2(1A)).

[7]        Section 2(1A) of the Act provides:

Any reference in this Act to an “amount”, “level”, or “quantity at and over which a controlled drug is presumed to be for supply” is a reference to the amount, level, or quantity specified in Schedule 5.

[8]        It was not in dispute that pseudoephedrine is a Class C controlled drug.  Under Schedule 5, cl 2 of the Act any controlled drug not specified in cl 1 (which pseudoephedrine is not) is presumed to be for supply at and over the level of 56grms.

[9]        In this case, the relevant purpose relied on in terms of s 6(1)(f) was that of sale.  The indictment charged “possession for the purposes of sale” of pseudoephedrine.  Sale of a Class C controlled drug to any person constitutes an offence, by the combined operation of paras (d) and (e) of s 6(1).  Sale to a person under 18 is an offence under para (d), because the definition of ‘supply’ in s 2 includes ‘sale’.  Sale to a person 18 years or older is an offence under para (e).  The reason for that somewhat convoluted prescription of the offence of sale of a Class C drug is that the supply (otherwise than by sale) of such a drug to a person over 18 constitutes only the lesser offence created by s 7(1)(b) of the Act. 

The fact that the sale of a Class C drug is dealt with in two paras in s 6(1) has caused difficulties which have required the attention of this Court.[1]  No issue was taken on this appeal as to the wording of the indictment.  We consider that the wording was appropriate.  Where the alleged purpose is sale, we consider that the wording of the indictment in this case can more easily be explained to, and understood by, the jury than the wordings suggested in R v Tracy or R v Paterson.  It also more clearly informs the accused of the purpose alleged, and what needs to be rebutted.

[1]      R v Tracy [1978] 2 NZLR 91; R v Paterson [1985] 1 NZLR 334.

[10]       Mr Meyrick, for the appellant, submits that the s 6(6) presumption applies in

this case only to the extent that the appellant is presumed to be in possession of the pseudoephedrine for supply, not for sale.  He submits that the only time that there is a presumption that the drug has been sold is if the drug has already been supplied so that the presumption in s 6(5) applies.  Section 6(5) provides:

For the purposes of para (e) of subsection (1) of this section, if it is proved that a person has supplied a controlled drug to another person he shall until the contrary is proved be deemed to have sold that controlled drug to that other person.

[11]       We are satisfied that that submission is not well founded.  Subsections (5) and (6) are concerned with quite different situations.  The subs (5) presumption applies where there is proof of a supply.  The supply is presumed, unless the contrary is proved, to be by way of sale.  Subsection (6) applies in circumstances where what is proved is not supply, but possession.  That possession is presumed to be for such of the purposes in paras (c), (d) or (e) of s 6(1) as are relevant to the charge against the person in respect of whom possession is proved.  That is clear from the decision of this Court in Rasmussen v R.[2]  Which of those purposes is relevant is determined by the terms of the indictment.  In this case the relevant purpose, specified in the indictment, was that of sale.  As we have earlier noted, possession for the purpose of sale of a Class C drug requires reference to both paras (d) and (e) of s 6(1).  It is not necessary that an indictment alleging an offence under s 6(1)(f) must nominate some purpose which falls exclusively within one or other of paras (c), (d) or (e).  Similarly, the s 6(6) presumption may apply to a purpose which arises from the combined operation of two of those paras.  That is clear from the use of the words “for any of the purposes set out in paras (c), (d) or (e)” in s 6(1)(f) and in s 6(6). 

[2]      Rasmussen v R CA11/98, 30 April 1998.

[12]       For these reasons, we are satisfied that the presumption in s 6(6) applied so that the appellant was presumed to be in possession of the pseudoephedrine for the purpose of sale, unless the contrary was proved.  The question trail used by the Judge in directing the jury, and the summing up, correctly directed the jury as to the effect of the presumption.  The first ground of appeal must accordingly fail.

Text messages

[13]       The next ground of appeal relates to the admission of text messages to and from two mobile telephones found in the possession of the appellant at the time of the search.  The submission is that the trial Judge erred in allowing unanswered text messages to be admitted as evidence. 

[14]       The text messages on the two telephones came from two sources.  Some came from a Chinese mobile phone number attributed to a person identified as “X”.  These messages were relied upon by the Crown in relation to the importation charge, on which the appellant was acquitted.  For that reason these messages do not require further consideration.  The rest of the text messages were from a New Zealand phone number attributed to a person identified as “G”, who was described by the appellant as a member of a gang for whom the appellant had been carrying out translation work.  These messages were relied on by the Crown in relation to the possession for sale counts.  The message principally relied on was a message to “G” which the appellant admitted sending.  A reply to that message from G was accepted by the appellant as having been received and read.  Both of those messages were clearly admissible.  The other text messages which the Crown alleged were sent by G were unanswered.  This ground of appeal is concerned with the unanswered texts.

[15]       In view of our decision that the presumption applied, we can deal quite shortly with this ground of appeal.  The Crown did not have to prove the purpose of sale, so the text messages were not necessary evidence on that issue.  It was for the appellant to prove that he did not have that purpose.  The appellant’s explanation, for the purpose of rebutting the presumption, was that he intended to extract the pseudoephedrine from the tiles and place it in rubbish bags on the street.  The Judge said of this in sentencing:

[9]         Really, his explanation at trial that he was simply going to put them in a black rubbish bag and place them on the road, given the significant value of this drug, simply defies reason or logic and I reject that and clearly the jury must have rejected that story from him.

In the light of that assessment, which in our view was fully justified by the evidence, we consider that there is no reasonable possibility that the jury’s conclusion (that the appellant had not satisfied the jury that it was more likely than not that the appellant did not have the pseudoephedrine for sale) might have been different if the evidence of the unanswered text messages on the appellant’s telephone had been excluded.  We accept the submission of counsel for the respondent that conviction was inevitable. 

[16]       Because of that, we consider it preferable not to venture into such questions as whether the unanswered text messages were hearsay statements, or implied assertions, or admissible under the co-conspirators rule.  Counsel for the appellant referred to three High Court authorities:  R v Day,[3] R v Fung,[4] and R v Holtham.[5]  Counsel for the respondent referred also to R v Anderson,[6] and R v Messenger,[7] R v Qiu,[8] R v Vagaia No 2,[9] and R v Hsu.[10]  Further discussion by this Court is better left for a case in which the answer to those questions will have a material effect on the outcome of the appeal.

Sufficiency of evidence of possession of pipes

[3]      R v Day HC Hamilton CRI-2005-019-434, 21 February 2006.

[4]      R v Fung HC Palmerston North CRI-2006-054-5024, 6 July 2007.

[5]      R v Holtham [2008] 2 NZLR 758.

[6]      R v Anderson [2007] NZCA 554.

[7]      R v Messenger [2008] NZCA 13.

[8]      R v Qiu [2007] NZSC 51, [2008] 1 NZLR 1.

[9]      R v Vagaia No 2 HC Auckland CRI-2006-092-16228, 20 March 2008.

[10]      R v Hsu HC Auckland CRI-2006-004-26378, 17 July 2009.

[17]       The final aspect of the appeal against conviction is the submission that there was insufficient evidence to support the conviction on the charge of possession of the pipes.  The appellant accepts that the pipe was used for smoking methamphetamine.  However, he submits that the evidence that it was found in the garage of a house owned by his father but used by the appellant and his friends was insufficient to support the jury’s verdict.  Counsel for the appellant submits that there was nothing in the evidence that the appellant ever had the pipe in his possession and the best that can be said is that the pipe constructively was in his possession.  He submits that the appellant “seems to have been charged with possession of the pipe for no reason other than it was in the garage”. 

[18]       The test to be applied to the question of whether the verdict of the jury should be set aside on the grounds that it is unreasonable or cannot be supported having regard to the evidence are those set out R v Owen:[11]

We return to the decision of the Court of Appeal in Munro. We propose to discuss the main judgment in that case only to the extent necessary for present purposes. We would endorse the following aspects of the decision in Munro:

(a)  The appellate court is performing a review function, not one of substituting its own view of the evidence.

(b)  Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c)  The weight to be given to individual pieces of evidence is essentially a jury function.

(d)  Reasonable minds may disagree on matters of fact.

(e)  Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f)  An appellant who invokes s 385(1)(a) must recognise that the appellate court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect or respects the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

[11]      R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [13].

[19]       The appellant had admitted that he has smoked methamphetamine in the garage with Ms Yu and that they would use glass pipes.  He denied knowing the pipe was in the garage.  The assessment of the evidence was a matter for the jury.  There was ample evidence upon which, if the appellant’s denial was rejected, the jury could have held the charge proved.  This ground of appeal too must fail.

Appeal against sentence

[20]       In support of the proposition that the sentence was manifestly excessive, Mr Meyrick submits that the sentence of six years for possession for sale imposed on the appellant was out of line with the four and a half years imposed on the co-offender Ms Yu.  She had pleaded guilty to the count of importing and the three counts of possession for sale.  Mr Meyrick submits that the appellant maintained his innocence to importing and was acquitted on that charge and that it is not reasonable to expect him to plead guilty to a charge which he denies and on which he was later acquitted.  He submits that in such circumstances the accused should not be penalised for continuing with a denial of the charge, and should not be penalised for taking the matter to trial.  He submits that the totality of Ms Yu’s offending was greater than that of the appellant. 

[21]       The appellant’s successful defence of the importing charge means that no account has been taken of that allegation in fixing the starting point for the sentence.  His successful defence of that count does not entitle the appellant to a discount on the possession for sale counts.  This Court in Hessell v R,[12] has held that an offender who is convicted of an offence for which he or she had earlier communicated a willingness to plead guilty should receive the maximum reduction available at the stage of proceedings at which that willingness was communicated.  That is not the situation here.  Maintaining the not guilty plea to the importing charge did not prevent the appellant from entering a guilty plea to the possession charges.  The successful defence of the importing count does not provide a basis for a discount on the possession counts.

[12]      Hessell v R [2009] NZCA 450, [2010] 2 NZLR 298 at [41].

[22]       A comparison of the sentences imposed on the appellant and Ms Yu indicates that the appellant has received a very considerable benefit from the acquittal on the importing count.  Both offenders were sentenced by Judge Paul.  The sentence imposed on Ms Yu was in accordance with a sentencing indication given earlier.  In that, the Judge indicated that the starting point for the importation and supply for what he described as “the master mind of the offending” would have been ten years.  He accepted that Ms Yu was not the master mind, and adopted a starting point for the importation and possession for sale of seven years.  In sentencing the appellant, the Judge rejected a submission that the appellant’s culpability was similar to that of Ms Yu.  He said that the evidence demonstrated a level of premeditation and culpability far in excess of Ms Yu’s involvement.  It is clear that had the appellant been convicted on the importing count as well, he would have been facing a starting point of around ten years. 

[23]       The approach to sentencing in cases involving dealing in pseudoephedrine was discussed by this Court in R v Xie.[13]  This Court noted that pseudoephedrine has been classified as a Class C drug not because it is harmful in its own right, but because of its status as the principal ingredient in the production of methamphetamine.  The Court said that to some extent the guidelines in R v Fatu,[14] are likely to be of more significance.  Cumulative sentences may be necessary to reflect the totality of the offending.  In the light of the quantity of pseudoephedrine, and the potential yield of methamphetamine, this was offending at the upper end of the scale.  The Judge adopted a starting point of five and a half years, with an uplift of six months for previous offending.  Given the seriousness of this offending, the appellant should count himself fortunate that the starting point was not higher.  The sentence was not manifestly excessive.

[13]      R v Xie [2007] 2 NZLR 240.

[14]      R v Fatu [2006] 2 NZLR 72 (CA).

[24]       The appeal against sentence is accordingly dismissed.

Solicitors:

Berman and Burton, Auckland for Appellant

Crown Law Office, Wellington for Respondent