Wallace v The Queen

[2015] NZCA 571

IN THE COURT OF APPEAL OF NEW ZEALAND

CA16/2015
[2015] NZCA 571

BETWEEN	SANDRA WALLACE Appellant
AND	THE QUEEN Respondent

CA111/2015
BETWEEN	VANA LEE DOWNS Appellant
AND	THE QUEEN Respondent

Hearing:	3 November 2015
Court:	Stevens, Fogarty and Mallon JJ
Counsel:	C B Wilkinson-Smith for Ms Wallace M A Edgar for Ms Downs J E Mildenhall for the Crown
Judgment:	26 November 2015 at 10.15 am

JUDGMENT OF THE COURT

AMs Wallace’s appeal against conviction and sentence is dismissed.

BMs Downs’ appeal against sentence is allowed.  Her sentence of four years’ imprisonment is quashed.  A sentence of three years and two months’ imprisonment is substituted.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

1. Ms Downs and Ms Wallace were charged in relation to a package of methamphetamine imported from Thailand to New Zealand.  Ms Downs pleaded guilty to and was convicted of possession of methamphetamine for supply.[1]  She was sentenced by Judge Johns to four years’ imprisonment in the Waitakere District Court.[2]  Ms Wallace was convicted following trial of importing methamphetamine and possession of methamphetamine for supply.[3]  She was sentenced to seven years’ imprisonment alongside Ms Downs.[4]  Ms Wallace appeals her conviction on the possession for supply charge.[5]  Ms Wallace and Ms Downs each appeal against their sentences.

The facts

[1]A charge of importation was withdrawn on her guilty plea to the other charge.

[2]New Zealand Police v Downs DC Waitakere CRI-2011-096-4926, 22 December 2014 at [26].

[3]Misuse of Drugs Act 1975, s 6(1)(a) and (f) (maximum penalty of life imprisonment).

[4]New Zealand Police v Downs, above n 2, at [20].

[5]There is no appeal against the importation charge.

1. The charges arose out of a package sent from Thailand to New Zealand, with a track and trace number, to a Mary Kingi at an Auckland address.  On its arrival at the New Zealand Post International Mail Centre on 24 March 2011 it was examined by the New Zealand Customs Service (Customs).  It was found to contain a statue and, inside that statue, a plastic bag containing 197 grams of white powder.  The white powder was removed for testing.  Customs subsequently added five grams of that white powder to an inert white powder, placed the new mixture into the statue, and repackaged the parcel. 

2. At 10 am on 28 March 2011 a woman identifying herself as Mary Kingi called the courier company to enquire about the package.  She referred to its track and trace number and asked for it to be delivered to the listed Auckland address.  She gave a contact mobile number.  Customs discovered that this number did not exist.  A woman called at 1 pm that day again enquiring about the package.  She left another contact mobile number.  Customs obtained and supplied to the police text data for that number for the period between 1 and 27 March 2011.  Amongst other things, the texts included one from Thailand referring to the track and trace number.  Other texts identified Ms Wallace as the user of that mobile number.

3. On 29 March 2011 Ms Downs arrived at the courier depot and collected the package.  She was arrested as she went to leave the depot.  She said that she had been asked to collect the package for Mary Kingi.  Shortly afterwards Ms Wallace was arrested at her home.  She said that she had been sent packages of clothing and gifts from a Nigerian man whom she had met some months earlier over the internet.

4. Institute of Environmental Science & Research (ESR) testing identified the white powder in the package as methamphetamine of approximately 80 per cent purity.  Its estimated street value was around $120,000 to $200,000.

Ms Wallace’s conviction appeal

First ground of appeal: the presumption for supply

1. If a person is in possession of a quantity of methamphetamine of five grams or more, they are presumed to have that possession for the purposes of supply until the contrary is proven.[6]  The relevant quantity of drugs for the purposes of the presumption is the quantity in its pure form.[7]  As the methamphetamine in this case was 80 per cent pure, the five grams that remained in the package collected by Ms Downs was less than the quantity that brought the presumption into effect. 

   [6]Misuse of Drugs Act, ss 6(6), 2(1A), and sch 5.

   [7]Schedule 5 and R v Fatu [2006] 2 NZLR 72 (CA) at [27].

2. The trial proceeded on the basis of the total quantity in the package at the time it arrived at the New Zealand Post International Mail Centre, namely, 197 grams:

   (a)In opening, the Crown referred to the presumption of supply when a person is in possession of more than five grams of methamphetamine and said “here we have almost 200”.

   (b)Defence counsel opened on the basis that the issue on this charge was possession because “no one can possibly contend there’s an issue in this case that 900 [sic] grams is for your own use”. 

   (c)Similarly in closing the Crown again referred to the presumption and said “we’re way above that which means if the law didn’t even make presumptions in the way we’re talking about, well there’s still a lot of methamphetamine involved here”. 

   (d)Consistent with how defence counsel had opened on this charge, in closing he did not refer to whether the methamphetamine was for supply but submitted that the evidence did not establish that Ms Wallace “in some way was involved in going off and picking up the parcel”. 

3. The trial Judge provided the jury with a question trail.   The first question in respect of the possession for supply charge was directed to whether Ms Wallace knowingly had possession and control of the methamphetamine.  If the answer to that was “yes”, the second question asked “[a]re you sure the methamphetamine of which she was in possession weighed five grams or more?”  If the answer was “yes” the jury were instructed to find Ms Wallace guilty of the charge.  The Judge directed the jury in accordance with this question and reminded the jury of what counsel had said about the issue.

4. On appeal counsel for Ms Wallace submits that Ms Wallace never had possession of the 197 grams of methamphetamine because the drugs were not in her control until after the controlled delivery.  By that time there was less than five grams of methamphetamine in its pure form and so the presumption of supply did not apply.

5. That submission needs to be assessed in context and having regard to the facts of the case.  It is well established that a person (A) may have “possession” of drugs even if they are in the physical custody of another person (B).  For example, person A retains sufficient control over the drugs if they have the power to ask for them back.[8]  Case law generally refers to “actual or potential control” as the relevant test.[9]  In Smith v Police Tipping J queried whether the concept of “potential control” was a helpful one and said:[10]

   You have control over something which is not in your actual custody if you have the ability to direct the custodian what is to be done with it.  You may have that ability in conjunction with others. 

   [8]Garrow and Turkington’s Criminal Law in New Zealand (looseleaf ed, LexisNexis) at [MDA7.2], citing R v McRae (1993) 10 CRNZ 61 (CA) and R v Byrne [1991] 2 NZLR 599 (CA).

   [9]R v Cox [1990] 2 NZLR 275 (CA) at 278; Rei v R [2012] NZCA 398, (2012) 25 CRNZ 790 at [38]; and see generally R v D (CA287/2010) [2011] NZCA 69.

   [10]Smith v Police (1994) 11 CRNZ 294 (HC) at 296.

6. Nevertheless the concept of “potential control” has continued in use.  It means that possession includes conditional control, that is, where there is an existing ability and intention to control if certain circumstances arise (for example, where a flatmate intends to hide drugs in the flat if the need arises).  The facts of this case raise an interesting question as to whether the concept of potential control has application where imported goods are subject to the control of Customs.[11]

   [11]Customs and Excise Act 1996, ss 20(1) and 175D.

7. However, as the argument was presented and developed at the hearing neither counsel addressed us in any detail on either the relevant statutory provisions or the applicable case law.[12]  In the event the issue of control in relation to Customs is not dispositive of the appeal and does not need to be determined

   [12]Relevant cases include: R v Boyce (1976) 15 SASR 40 (SASC); as cited in Don Mathias Misuse of Drugs (online ed, Brookers) at [1.1.16]; R v Warneminde [1978] QR 371 (QCA); and R v Hancox [1989] 3 NZLR 60 (CA).

8. The issue regarding the amount of controlled drugs that Ms Wallace had in her possession is of course relevant to the Judge’s directions to the jury.  It could be argued, as her counsel did on appeal, that Ms Wallace did not have possession of the 197 grams of methamphetamine, and the five grams remaining in the package was not pure methamphetamine.  The question then would be whether the presumption of supply applies. 

9. In the end we do not need to determine the point.  Ms Wallace’s defence at trial was not run on the basis that she had no knowledge of the quantity of drugs in the package or that, in light of the quantity remaining in the package, the presumption did not apply.  Her defence on both charges was that she was not involved and that the evidence did not prove her involvement.  She was represented by experienced trial counsel.

10. The jury’s guilty verdicts on both charges mean that they were satisfied beyond reasonable doubt that she was involved, both as an importer and as being in possession of the drugs collected by Ms Downs.  Given the large quantity of drugs in the package intercepted by Customs there is no prospect that the jury would consider on the balance of probabilities that the drugs in the package collected by Ms Downs were not for supply.  Any potential error of the type argued on appeal could not have given rise to the risk of a miscarriage of justice.

11. This ground of appeal is therefore not made out.

Second ground of appeal: possession as a party

1. The second ground of appeal concerns the trial Judge’s directions regarding party liability in relation to the possession for supply charge.  Counsel for Ms Wallace submits that the Judge failed to direct that it was an essential element that Ms Downs possessed the drugs for supply.  He further submits that Ms Downs did not have that purpose because, on the Crown’s case, Ms Downs was collecting them on behalf of Ms Wallace.  She was therefore a custodian returning them to their owner.  The latter point is incorrect.  Ms Wallace may be the importer of the goods and she may also be a principal or a party to possession of them for supply even if Ms Downs was collecting the drugs on her behalf. 

2. As to the first point, the Judge’s question trail for the jury on this charge was as follows:

   1.Are you sure Ms Wallace had possession of methamphetamine, that is she had knowing possession and control of the methamphetamine with the knowledge that it was a controlled drug?

   If the answer is no, you must find Ms Wallace not guilty.

   If the answer is yes, you must consider:

   2.Are you sure the methamphetamine of which she was in possession weighed five grams or more?

   If the answer is no, you must find Ms Wallace not guilty.

   If the answer is yes, you must find Ms Wallace guilty of Count two.

   OR

   3.Are you sure Ms Wallace was a party to the possession of the methamphetamine, that is she had knowing possession and control of the methamphetamine with the knowledge it was a controlled drug?

   If the answer is no, you must find Ms Wallace not guilty.

   If the answer is yes, you must consider:

   4.Are you sure Ms Wallace had possession of the methamphetamine for the purpose of supply?

   If the answer is no, you must find Ms Wallace not guilty.

   If the answer is yes, you must find Ms Wallace guilty of Count two.

3. It seems that questions three and four were intended to deal with party liability.  Question three began by asking whether the jury were sure Ms Wallace “was a party to the possession of the methamphetamine”.  However question three went on to require the jury to be sure that Ms Wallace had “knowing possession and control of the methamphetamine with the knowledge it was a controlled drug” which is the same wording as for question one.  And question four was focussed only on Ms Wallace. 

4. Those questions appear to be directed at whether Ms Wallace was liable as joint principal with Ms Downs.  They were not directions to consider whether Ms Wallace was liable as a party, by assisting or encouraging Ms Downs’ possession for the purpose of supply, with the knowledge and intention of so assisting or encouraging Ms Downs.  However the Judge also provided the jury with a handout explaining party liability under s 66(1) of the Crimes Act 1961.  This correctly explained that a person could be liable as a party if he or she assisted or encouraged another person to commit a crime.  It explained that a person needed to know the essential facts of the crime and intend to assist or encourage the other person to commit a crime. 

5. The question trail therefore did not match the s 66(1) party explanation.  The Judge did not clear up this discrepancy in her oral directions.  Nor did she elaborate on how party liability might differ from principal liability under questions one and two in the circumstances of the case.  The party liability directions were therefore confusing and incorrect. 

6. That said, there was no risk of miscarriage from the directions.  Given that questions one and three both asked the jury to be sure that Ms Wallace had “knowing possession and control of the methamphetamine with the knowledge it was a controlled drug”, the jury could not have answered question one any differently to question three.  The jury’s verdict means that they must have answered question one and/or question three “yes”. There was no prospect that the jury would have answered question two “no” given the way the trial was run (that is, that the relevant quantity of drugs was 197 grams).  Therefore, if the jury answered the questions in order as is likely, they would not have proceeded to questions three and four as a guilty verdict would follow from questions one and two.  But even if they decided to go straight to question three, the jury’s verdict means that they must have been sure under question four that Ms Wallace’s purpose was supply. 

7. Accordingly this ground of appeal is also not made out.

Ms Wallace’s sentence appeal

1. Ms Wallace was sentenced to seven years’ imprisonment.[13]  This was the Judge’s starting point for her offending.  The Judge considered there to be no relevant personal aggravating or mitigating factors.  Ms Wallace appeals her sentence on the ground that there were mitigating factors warranting a discount, namely, her improved personal circumstances; concessions made on her behalf that shortened the trial; and the lengthy period between when the charges were brought and the trial.

   [13]New Zealand Police v Downs, above n 2.

2. We are satisfied that the Judge was not required to give a discount for any of these matters.  Ms Wallace had taken some positive steps by removing herself from a destructive relationship but she also continued to maintain her innocence.  The concessions made in relation to the proceedings were usual ones: the evidence of a number of witnesses was read by consent and the ESR evidence was produced by consent. 

3. It is true that the time to trial was very long (she was charged on 29 March 2011 and the trial took place in the week of 10 September 2014).  This factor may have warranted a discount if, for example, Ms Wallace had spent that time on very restrictive bail conditions or she had demonstrated remorse and rehabilitation.  Neither of these things happened.  Ms Wallace was in custody from 31 March 2011 until 22 July 2013 for other offending.  From that time until trial she was on bail, which for the most part was not especially restrictive involving a twice-weekly reporting condition.  And, as mentioned, the information before the Judge did not demonstrate remorse and rehabilitation efforts to require a discount.

4. Ms Wallace’s appeal against sentence is therefore dismissed.

Ms Downs’ sentence appeal

1. Ms Downs was sentenced to four years’ imprisonment.  She appeals against that sentence on the grounds that it is manifestly excessive.  She contends that the starting point adopted by the Judge was too high because the Judge did not sufficiently differentiate between her lesser culpability relative to Ms Wallace as the primary offender.  The sentence appeal was originally also advanced on the basis that the discount for her guilty plea was too small and that her personal circumstances justified a further reduction.  However her counsel acknowledged at the hearing that the discount for these matters was reasonably generous and the principal submission concerned the starting point.

2. The starting point for Ms Downs was set by the Judge after she had set the starting point for Ms Wallace.  Ms Wallace’s starting point was set on the basis that the offending fell within band two of R v Fatu (for quantities of methamphetamine between five grams and 250 grams with a range of three to nine years imprisonment).[14]  Her seven year starting point was taken because the quantity involved was at the higher end and the Judge considered it “very clear” that Ms Wallace was managing and in control of the importation and its onward supply.[15]

   [14]R v Fatu, above n 7, at [34](b).

   [15]New Zealand Police v Downs, above n 2, at [19].

3. The Judge accepted that Ms Downs’ role was a “significantly lesser” one.[16]  The Judge noted that counsel for Ms Downs had proposed a three year starting point in his written submissions but “has realistically accepted today that [this] was too low given the quantity”.[17]  Instead he advanced a starting point of five years which the Judge regarded as appropriate.  The Judge allowed a 12 month discount for Ms Downs’ guilty plea which was made at the start of the trial, and because she had been subject to “restrictive bail conditions for a very long time”, and she had taken positive steps to improve her situation subsequent to the offending.[18]

   [16]At [23].

   [17]At [14].

   [18]At [25].

4. Counsel for Ms Downs says that he made the concession about the starting point when put “on the spot” by the Judge in light of the authorities the Crown had put forward.  He now submits that he erred in doing so.  He says that while the quantity put the offending in band two, the starting point for Ms Downs did not adequately reflect her significantly lesser role.  He says she was the archetypal “catcher”.  Her role was limited to picking up the parcel at the direction of Ms Wallace and her partner.[19]  There was no evidence that she was to profit from her involvement.  Rather it was submitted that her involvement arose through manipulation by Ms Wallace and her partner, who had the care of her child following Child, Youth and Family involvement.

   [19]Ms Wallace’s partner, Mr Heke, had driven Ms Downs to the courier depot to collect the parcel.  Mr Heke was charged but was discharged by the Judge at the end of the Crown case.

5. We agree that the starting point for Ms Downs was too high given her significantly lesser role in the offending.  As stated in R v Fatu:[20]

   Where an offender fits within any particular band will depend not just on the quantity and purity of the drugs involved but also the role played by the offender.  Those who are primary offenders can expect starting point sentences towards the higher end of the relevant band, with the converse applying to those whose role is less significant. 

   [20]R v Fatu, above n 7, at [31].

1. The Crown refers to two cases which it submits show that the five year starting point was not outside the available range.  Both cases, however, involved offenders with a greater degree of involvement than that of Ms Downs in this case.[21]  Other cases provide examples of greater differentiation from the principal offenders for those with significantly lesser roles.[22]  Ms Downs was not involved in arranging the importation.  She was not involved in its onward supply.  There is no evidence that she was to profit from the arrangement.  Ms Wallace was found guilty both of importing the drugs and of possession for supply and was managing and in control of both aspects.

   [21]See R v Byford and Ngataki [2008] NZCA 215 at [11] where Ms Ngataki was described as being “actively complicit in the serious offending to a degree which involved significant culpability on her part”. See also R v Huang [2008] NZCA 174 at [5] where Ms Huang was described as having “been motivated by profit.”

   [22]For example, R v Nguyen [2009] NZCA 239; R v Aroh [2008] NZCA 457; and Zheng v R [2015] NZCA 451. See also, for example, R v Chea [2015] NZHC 1806 and R v Ellis HC Wellington CRI-2007-085-6245, 30 October 2009.

2. We accept the submission for Ms Downs that an appropriate starting point was no more than four years’ imprisonment.  The 20 per cent discount allowed for the mitigating factors was appropriate and arguably at the generous end of the available range.  Applying that discount to a four year starting point means an end sentence of three years and two months’ imprisonment.  We consider the four year sentence was accordingly manifestly excessive and the sentence appeal must be allowed.

Result

1. Ms Wallace’s appeal against conviction and sentence is dismissed.  Ms Downs’ appeal against sentence is allowed.  Her sentence of four years’ imprisonment is quashed and a sentence of three years and two months’ imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent