Wright v The Queen
[2020] NZCA 581
•23 November 2020 at 9.30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA68/2020 [2020] NZCA 581 |
| BETWEEN | MARK ANDREW WRIGHT |
| AND | THE QUEEN |
| Hearing: | 7 October 2020 |
Court: | Gilbert, Mallon and Ellis JJ |
Counsel: | A J McKenzie for Appellant |
Judgment: | 23 November 2020 at 9.30 am |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Ellis J)
Following a trial before Judge Garland and a jury, Mr Wright was convicted of three charges of importing a Class A controlled drug (methamphetamine).[1] He was sentenced to nine and a half years’ imprisonment on 17 January this year.[2] The Judge applied the guidelines set out by this Court in Zhang v R.[3]
[1]At the start of his trial he also pleaded guilty to one charge of possessing pipes for methamphetamine use and one charge of possessing methamphetamine.
[2]R v Wright [2020] NZDC 730. The sentence comprised a nine-year starting point with an uplift of six months for past offending.
[3]Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.
Mr Wright now appeals his importation convictions on several grounds: insufficient evidence that the drugs were imported, insufficient evidence that he was involved with the importation, and that an “attribution” chart prepared by the Crown was improperly given to the jury. He appeals his sentence on the ground that the Judge ought to have reduced the starting point (or given an appropriate discount) to reflect that the drugs were intercepted by the New Zealand Customs Service (Customs) before he received them.
Factual background
On 15 June 2017, a package from California, United States was received by the New Zealand Post Depot in Christchurch (Package A). The wrapping of Package A recorded:
(a)Sender: law offices of Jean Goldsman, 501W Civic Centre Drive, Santa Ana, US 714 541 3333.
(b)Addressed to: Royce Michael, 44 Rutherford Street, Woolston, Christchurch 8023.
(c)Tracking number: EQ 001 711 449 US.
While in transit, a redirection for Package A had been requested through the New Zealand Post website. The requester asked to collect it from Kiwibank Post Office, Ferrymead and gave the phone number 021 0260 8929 (the 8929 redirection number).
Package A was examined and seized by Customs who found it contained 111.7 g of methamphetamine hidden within legal documents.
On 21 September 2017, Customs officers examined two further packages that had been unable to be delivered by FedEx Christchurch earlier that morning. The information written on the first (Package B) included:
(a)Sender: Chau Lee, 4384 1-2 Bancroft Street, San Diego, California 92104, US.
(b)Addressed to: Mr and Mrs Moore, 260 Innes Road, St Albans, Christchurch. Phone number +64 947 55703.
(c)Tracking number: 787 753 937 381.
And the other (Package C) had written on it:
(a)Sender: Lu Chiu, 4540 Florida Street, Apt 9, San Diego, California 92116, US.
(b)Addressed to: Dan Moore, 219 Innes Road, St Albans, Christchurch. Phone number +64 947 55709.
(c)Tracking number: 787 753 888 129.
It transpired that Package B contained 146.4 g of methamphetamine hidden among documents; Package C contained 138.3g of methamphetamine hidden among documents.
Later that day, an unknown woman purporting to be “Mrs Moore” telephoned the Fedex Depot in Christchurch. She said that her husband would pick up two parcels from the depot that afternoon, and she gave a contact number: 021 0257 6846 (referred to at trial as “the Orange Number”).
That afternoon, a silver Mazda (registration number HHY676 — registered to Mr Wright) arrived at the depot; a man got out of the car and went to the counter. He said he was there to pick up Packages B and C. He had the necessary paperwork that showed tracking numbers for each of them. He was told by staff that Customs had detained the packages — he left empty-handed.
On 22 November 2017, the police executed a search warrant at Mr Wright’s Christchurch home. They found a small amount of methamphetamine and two glass pipes. Mr Wright later accepted that they belonged to him.[4] They also found a piece of paper with a guide on how to use the dark web to import drugs.
[4]Leading to his guilty plea on the relevant charges.
The subsequent investigation involved attributing multiple mobile phone SIM cards, IMEI numbers (handset numbers), and text data. Mr Wright had several phones, and several SIM cards that he swapped between those phones. The Crown case was that the resulting attribution trail pointed to Mr Wright as the person who had used the 8929 redirection number to redirect Package A. It also pointed to Mr Wright being the person who used the Orange Number to arrange the pickup of Packages B and C.
Further investigations revealed that Mr Wright used encrypted applications on his phones, which the Crown alleged was to keep his illegal communications hidden. The text data from the phones indicated that Mr Wright was involved with dealing drugs and with purchasing Bitcoin. As well, large sums of money had been transacted through Mr Wright’s bank account — cash deposits of around $46,000.
Conviction appeal
As noted earlier, Mr Wright’s conviction appeal was advanced on three grounds. He says a miscarriage of justice has occurred because:
(a)there was insufficient evidence for the jury to be satisfied that the drugs were imported;
(b)there was insufficient evidence for the jury to be satisfied that Mr Wright was involved with the importation; and
(c)the phone “attribution” chart prepared by the Crown was wrongly provided to the jury.
We address each in turn.
Sufficiency of evidence to prove packages imported
In order to establish the charges, the Crown needed to prove that the drugs had been imported into New Zealand from a place outside New Zealand, as required by s 6(1)(a) of the Misuse of Drugs Act 1975.
At trial, the Crown primarily relied on the markings, stickers and labels on the packages, which included the United States sender addresses, the words “United States Postal Service”, and the tracking numbers.[5] In his evidence, Andre Durante (the Customs Officer in charge of the investigation) accepted that the addresses on the packages — and most likely the senders’ details — were false.
[5]Packages B and C (sent via FedEx) differ from Package A, but each bears a printed label indicating a San Diego origin and ID number and the words “INTL [International] priority” and “AKL” [Auckland].
But Mr Durante’s evidence was that, based on their markings and stickers, he believed the packages had arrived from overseas. Mr Durante also said that the United States Postal Service uses EMS New Zealand (EMS) as a subsidiary to deliver mail within New Zealand. The relevant part of his evidence was as follows:
Q. So you’re gesturing at the sticker with orange on it on the bottom left‑hand side underneath the green number 39 and can you read aloud that sticker.
A. Delivered by New Zealand Post. For any enquiries please call 0800 736353 EMS, associated number EE020 223535NZ.
THE COURT:
Q. So what are you saying that sticker tells us?
A. International mail through New Zealand Post arrives at an international mail centre and that [is] located in Auckland. From that location once an imported mail item arrives NZ Post affix such a sticker to the item.
EXAMINATION CONTINUES: MR TAFFS
…
A. So there’s different streams that mail can arrive into New Zealand. A common method is for New Zealand Post and one organisation which – offshore – in this case United States Postal Service – they use the services of NZ Post on arrival into New Zealand so that’s one means that mail can come to New Zealand. The other common stream is Fast Freight.
THE COURT:
Q. So from that I take it you’re telling me that sticker indicates that this parcel came through New Zealand Post, Auckland.
A. Yes Your Honour.
EXAMINATION CONTINUES: MR TAFFS
…
Q. And just at the left-hand side of that there’s a bar code and underneath it there’s a series of numbers and letters. Can you read that aloud?
A. EQ001711449US.
Q. And are you able to speak to what the US at the end of that number means?
A. This signifies that this particular item has come from the United States.
…
THE COURT:
Q.Just before you move on from that so it came into New Zealand with that tracking number EQ001711449US?
A. Yes Your Honour.
Q. And then it was given a tracking number within New Zealand?
A. Yes that is correct.
Q. EE020223735NZ?
A. Yes Sir.
Mr Durante was not challenged on this evidence. Kadin Conner (another Customs officer whose evidence was read by consent) also identified EQ001711449US as an international tracking number.
Although defence counsel’s closing address initially suggested that the defence was about identity rather than importation,[6] he later made it clear that importation was disputed. In doing so, he emphasised the lack of direct evidence (for example, from anyone at FedEx) confirming that the packages were sent from the United States. And he said that the inferential evidence on the point was simply not enough to be certain.
[6]Mr McKenzie said:
“It is a whodunnit type of case. Who redirected [Package A], who imported [Packages B and C]? Not who picked them up but who imported them, because as we know there is a bit of difference there.”
The Judge dealt with the issue in his summing up as follows:
[64] … First, the defence case is that the Crown has not proved that any of the packages were brought into New Zealand. In other words, the Crown has not proved that these packages were imported – that is the first essential ingredient for the Crown to prove beyond reasonable doubt in relation to each charge. There is no direct evidence. The defence argues it is not something that you can infer, as the Crown has suggested in all the circumstances, including the obvious markings on the packages and the evidence of Mr Durante, that the US Postal Service uses EMS as a New Zealand subsidiary to deliver mail in New Zealand, so the defence says you cannot infer that, whereas the Crown says you can.
[65] Clearly, members of the jury, that is a preliminary issue for you which you will need to consider. You should look at the exhibits for yourselves. Is it a reasonable inference that you can draw, especially from the nature of the packages and the markings on them that each was brought into New Zealand? It is a matter for you, members of the jury, and not for me, but I suggest once you look at the packages then the answer may be quite clear.
(Emphasis added.)
Mr McKenzie’s principal points on appeal were that the Judge went too far in indicating his own view of the facts in the last sentence of [65] and that his view was, in any event, not supported by the evidence.
As to the first point, this Court said in R v Keremete:[7]
[19] The judge need not, and should not, strive for an artificial balance between the rival cases if the evidence clearly favours one side or the other. A judge is entitled to express his or her own views on issues of fact, so long as it is made clear that the jury remains the sole arbiter of fact. Any comment on the facts should be made in suitable terms without use of emotive terms or phrases which could lead to a perception of injustice. But provided the issues are fairly presented, the comment may be in strong terms … Inevitably these are ultimately matters of degree and judgment.
[7]R v Keremete CA247/03, 23 October 2003 (citations omitted). Despite its age, Keremete has recently been cited by this Court as being the “leading statement on how a judge should approach his or her summing-up”: B (CA182/2018) v R [2019] NZCA 18 at [55].
Here, the Judge had given the jury the standard direction that they were the sole arbiters of the facts.[8] And at [65] he told the jury that they had to determine the origin of the drugs for themselves. We acknowledge that the Judge did not say that direct evidence would have been easily obtainable, or that care was needed in relying on the markings and stickers alone when other aspects of the labelling on the packages were false. The absence of such further evidence does not, however, mean that the evidence that was before the jury was inadequate. And we consider that the Judge adequately put the defence case — which was that there was no direct evidence of importation and that no safe inference of importation could be drawn from the indirect evidence. We do not consider the Judge’s comments give rise to a miscarriage.
[8]At [3] of the summing up he said:
“However, as I indicated at the outset of this case, I do not decide the facts. I do not decide the verdicts. The facts of the case and the verdicts are for you, and for you alone. If, in the course of what I have to say, you think that I have got some view about the facts of the case or about the verdicts, then please ignore it, unless of course it happens to coincide with your own view. The facts of the case and the verdicts are for you.”
As to the second point, we consider that the appearance of the packages (photographs of which we have seen), combined with the explanations of Mr Durante, readily justified an inference that the packages had come from abroad. We agree with Mr Sinclair for the Crown that the jury might well have thought it improbable that great lengths would be taken to package drugs sent within New Zealand so that they appeared to have a foreign origin.
Sufficiency of evidence to prove Mr Wright’s involvement in importation
Mr McKenzie says that there was insufficient evidence connecting Mr Wright to the offending. He acknowledged, however, that this submission was stronger in relation to Package A, given the evidence that it was Mr Wright who went to pick up Packages B and C. He also raises a legal issue about whether the importation of Packages B and C was complete after the attempt to deliver them and, so, by the time of Mr Wright’s attempt to collect them at the FedEx depot.
The last matter can be dealt with briefly. As Mr McKenzie acknowledged, the evidentiary significance of Mr Wright’s attempt to collect the packages is essentially the same, regardless of whether the importation was, by that point, complete.[9] His attempt to pick up the packages (and his possession of the relevant tracking numbers) can legitimately be used — combined with the other circumstantial threads — to infer his prior involvement with, and responsibility for, the importation. Proof of his involvement in the importation does not require his physical presence at (or before) the time the act of importation came to an end.
[9]The Crown’s case at trial was that by the time Mr Wright went to the depot to pick up the packages the importation had ceased, with the prosecutor saying to the jury in closing that “to prove this charge you’ll need to be satisfied that he had involvement in that importation prior to that moment”. Importation had certainly ceased when Customs took control of the packages and decided to retain them.
As for the sufficiency of evidence showing that Mr Wright was involved in the importations, there is no dispute that the Crown’s case against Mr Wright was circumstantial. To reiterate, the strands of the circumstantial rope included:
(a)a piece of paper found at Mr Wright’s address with guidance on accessing the dark web;
(b)nine mobile phones and three SIM cards found at Mr Wright’s address;
(c)evidence of a large “web of handset and SIM card usage” (shown visually on the attribution charts) consistent with “mixing and matching” SIM cards in different handsets;
(d)the presence of encrypted apps on various phones attributed to Mr Wright;
(e)text messages from mobile phones attributed to Mr Wright that suggested use of encrypted apps to communicate and discuss payments made with Bitcoin;
(f)evidence from Mr Wright’s bank accounts that suggested he was buying Bitcoin;
(g)Mr Wright’s remission of funds totalling $5,750 through Western Union to Cameroon nationals in Japan;
(h)$2,400 found in cash at Mr Wright’s address; and
(i)$46,870 in Mr Wright’s BNZ bank account from cash deposits made at ATMs between 5 January 2017 and 2 August 2017.
Mr McKenzie submitted that a number of these strands are capable of innocent explanation and that others can bear no relationship to the importations. He said:
(a)there was no evidence that the drugs were paid with Bitcoin or evidence matching the value of the Bitcoin with the methamphetamine imported;
(b)there was no direct link (such as matching values) between the international money transfers and the importations;
(c)the deposits into Mr Wright’s bank account cannot be evidence of the three importations because the drugs were not received by him for sale and there was no evidence that Mr Wright had previously dealt with methamphetamine that would support an inference that the money was from drug dealing.
(d)Mr Wright’s possession of multiple phones and use of encrypted messaging apps was of little evidentiary value;
(e)the Crown’s attribution chart did not prove that Mr Wright possessed the relevant phones or SIM cards at the time of the importations;[10] and
(f)the guide for buying drugs on the dark web did not match the timeframe for the importations — the Silk Road website referred to in the instructions was not then operational.
[10]For example, Mr McKenzie said that if Mr Wright only acquired the phones in October 2017, he could not have been responsible for their suspicious use before then (such as the redirection of Package A in June 2017 and the female caller arranging collection of Packages B and C in September 2017).
Mr McKenzie also submitted that:
(a)the “internal” propensity evidence connecting the three importations led to an unfair “chicken and egg” problem;
(b)the Crown failed to rebut Mr Wright’s evidence that he had been asked by his female acquaintance to pick up Packages B and C, and failed to explain the identity of the unknown female caller; and
(c)Mr Wright was simply a convenient scapegoat because of his previous convictions.
As Mr Sinclair submitted, however, these submissions are based on a mischaracterisation of the Crown case and of how circumstantial evidence operates. More particularly:
(a)if the jury accepted that the phone number used in association with the redirection of Package A was Mr Wright’s, then that would strongly suggest his involvement in the importation of Package A; and
(b)for Packages B and C, there was evidence of a similar association between Mr Wright and the phone number used after the FedEx delivery attempt, and evidence of Mr Wright’s later attendance to collect the packages from the FedEx office.
And — as the Judge very clearly explained — if the jury found that Mr Wright was involved in the first importation of Package A and that there were relevant similarities between that importation and the latter two, they could take the former into account as evidence making it more likely that he was also the importer on the second occasion. That kind of propensity reasoning is orthodox and permissible; there is nothing “chicken and egg” about it.
And the Crown did not, for example, submit that the cash deposits were generated by the shipments forming the basis of the charges; that would have been wholly illogical, given those shipments did not reach their final destination.[11] Instead, that evidence — together with Mr Wright’s use of Bitcoin, his researches about the dark web, the swapping of SIM cards and handsets, the use of encrypted messaging, and the international money transfers — was called to support the importation claim and, more particularly, the Crown’s contention that Mr Wright knew what the packages contained. Conversely, it was relied on to rebut Mr Wright’s claim that he believed he was collecting ordinary internet purchases at the request of his girlfriend. As with the cash deposits, the precise timing of the research, transfers and phone usage was not especially material in that context.
[11]The Crown case was that Mr Wright was using Bitcoin to purchase the methamphetamine.
Given our view that the evidence sufficed to justify convicting Mr Wright, the proposition that he was “a convenient scapegoat” need not be considered further. There is, in any event, no foundation for it.
Unfair promotion of Crown’s “attribution” chart
Mr McKenzie submits that the jury’s use of the Crown’s attribution chart improperly promoted the Crown’s case. That was also his position at trial, but the Judge overruled the objection. He criticises the chart because it does not show when a particular SIM card was used in a particular handset and it does not show that Mr Wright possessed the various phones and SIM cards at the relevant times.
We agree with Mr Sinclair that the attribution charts were an uncontroversial visual aid prepared to help the jury understand a complex set of relationships. Such visual aids have been commonplace for many years. Both the prosecutor and the Judge were careful to warn the jury that the attribution charts were not evidence themselves and that the jury needed to disregard any aspect of them that did not accord with the evidence.[12] And while the charts do have the limitations to which we have just referred, those limitations were made quite clear to the jury — both the prosecutor and defence counsel referred to them, and so too did the Judge (twice) in his summing up. There is nothing in this ground of appeal.
Result
[12]Notably, Mr McKenzie does not seek to argue on appeal that the charts did not, in fact, reflect the evidence.
The jury’s verdicts were clearly open to them on the evidence. No risk of miscarriage arises. The conviction appeal is dismissed.
Sentence appeal
The sentence appeal can be dealt with relatively quickly. The sole ground of appeal is that the starting point of nine years’ imprisonment was manifestly excessive because it did not take account of the importations’ failure. Mr McKenzie submits that no harm was caused because the total 396 g of imported methamphetamine was never received or distributed. He argues that a starting point of five to six years’ imprisonment (plus an accepted uplift of five per cent for the previous convictions) would have been appropriate.
The same argument was advanced and rejected at sentencing. The Judge’s reasoning cannot be faulted, and we set out the relevant parts in full:[13]
[13]R v Wright, above n 2 (footnotes omitted).
[18] … Mr McKenzie relies on a comment made in the case of Zhang v R, at paragraph 239 in relation to the appellant Hobson where the Court of Appeal said this:
Had Ms Hobson succeeded with the further offence of conspiracy, the total amount supplied would have been 590 grams of methamphetamine warranting a starting point of 10 years and six months’ imprisonment under the new sentencing guidelines. Allocating half of that potential increase for the incomplete offence has been identified by this Court as the correct approach.
[19] The Court referred to the decision of Parata v R, a previous decision of the Court of Appeal in support. The Court went on to say:
On this basis an uplift [of] nine months is appropriate.
[20] Mr McKenzie is therefore suggesting that although the importations in your case were complete, as a matter of fact because the importations were intercepted by authorities you did not get to use or distribute the methamphetamine, thereby reducing the amount of harm that would have been caused in the community.
[21] The Crown’s response to that argument is it would be a surprising result if a person received a discount because authorities successfully intervened after an importation was complete and thereby prevented the use for distribution of the drug. Zhang clearly can be distinguished on the basis that in the case of R v Hobson, the offence was not complete whereas in the present case the importation was complete. …
…
[26] There are no mitigating features of your offending, apart from the mitigating feature that I now refer to. The only mitigating feature of the offending is that the importations were intercepted and therefore you did not get the opportunity to use or distribute these drugs. In that sense the harm caused was limited. However, I accept the Crown’s argument that you deserve no credit for that. It would be a surprising result in my view if a person intended to import and use and/or distribute large amounts of methamphetamine in New Zealand with the full knowledge of the harm that that would do within our community if that person was to receive a substantial discount because the authorities intervened in a timely manner.
The proposition that some form of discount should be afforded where drugs are intercepted before they reach either the would-be suppliers or their customers is a novel one. It is predicated on the erroneous assumption that there is no difference between charges of importing methamphetamine, being in possession of methamphetamine presumptively for supply, and supplying methamphetamine. Each are separate offences with their own elements which must be proved. Each is independently punishable by the same maximum penalty. Being in possession of and supplying methamphetamine are not elements of a charge of importing. And here, the jury found that all the elements of importing — the crime of which Mr Wright was convicted — were proved.
Finally, and by way of cross-check, the case of Ms Hobson (one of the Zhang appellants) is, as the Judge found, comparable and instructive. Ms Hobson had pleaded guilty to, and was convicted of, three charges of importing methamphetamine, three charges of possession of methamphetamine for supply, and one charge of conspiracy to import methamphetamine. The quantity of methamphetamine imported was (at least) 300 g, for which this Court found that — taking account of Ms Hobson’s leading role — nine years was an appropriate starting point.[14] That is the same starting point adopted in Mr Wright’s case, for his leading role in the importation of a slightly greater quantity. In Ms Hobson’s case, as noted by the Judge, the starting point was uplifted by nine months to reflect the failed importation of a further 290 g of methamphetamine.[15] That did not constitute a reduction in sentence on account of the methamphetamine not reaching Ms Hobson; the methamphetamine was intercepted in Thailand, so the act of importation was not complete. There is no such failed importation here.
Result
[14]Zhang v R, above n 3, at [238].
[15]At [239].
The appeal against conviction is dismissed.
The appeal against sentence is also dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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