IN THE COURT OF APPEAL OF NEW ZEALAND
CA430/2013
[2014] NZCA 189
BETWEEN
SEAN CHRISTIAAN MURRAY
Appellant
AND
THE QUEEN
Respondent
CA432/2013
AND BETWEEN
JOLENE ROSE
Appellant
AND
THE QUEEN
Respondent
Hearing:
25 March 2014 (further submissions received 16 April 2014)
Court:
Stevens, Keane and Andrews JJ
Counsel:
P H Surridge for Appellant Murray
D L Stevens QC for Appellant Rose
P D Marshall for Respondent
Judgment:
20 May 2014 at 2.30 pm
JUDGMENT OF THE COURT
The appeals are dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Keane J)
MURRAY V R CA430/2013 AND ROSE V R CA432/2013 [2014] NZCA 189 [20 May 2014]
Table of Contents
Para No
Introduction
Issues on appeal
Offending
Sentencing submissions
Minutes of Goddard J
Scale of methamphetamine supply
Lack of disputed fact hearing
Span of Rose offending
Alternative calculation concerning Rose offending
Starting point for Rose
Sentence for Murray
Starting point for Murray
Mental health discount for Murray
Conclusion for both appeals
[1]
[11]
[12]
[29]
[40]
[46]
[58]
[64]
[70]
[78]
[87]
[91]
[94]
[102]
Introduction
[1]
At trial in the High Court on 18 April 2013, Jolene Rose was convicted of
23 charges, comprising: one representative count of selling methamphetamine for a
period between 6 August 2008 and 20 March 2012; one count of possession of
methamphetamine for the purpose of supply on or before 20 March 2012; one count
of the possession of cannabis for the purpose of supply on or before 20 March 2012;
and 20 counts of unlawful possession of firearms, restricted weapons and
ammunition.1
[2]
At sentencing, Goddard J noted that Ms Rose had, within the four year span
of her lead offence, supplied at least 8.44 kilograms of methamphetamine.2 She
sentenced Ms Rose to 20 years’ imprisonment, with a minimum term of 10 years.3
Ms Rose also received lesser concurrent terms for her other offences.4
[3]
Sean Murray, who was charged jointly with the same 23 offences above,
pleaded guilty to the firearms offences in December 2013 and to the remaining
1
2
3
4
R v Rose HC Palmerston North CRI-2012-054-860, 18 April 2013.
R v Rose [2013] NZHC 1380 at [10] [Sentencing Notes for Appellant Rose], determined in a
previous minute during trial: R v Rose HC Palmerston North CRI-2012-054-860, 6 June 2013
(Minute (No 6) of Goddard J) at [37].
Sentencing Notes for Appellant Rose, above n 2, at [52].
At [53]–[55].
offences on 8 April 2013, being the first day of trial. At sentencing Goddard J held
that he had played a lesser part in the methamphetamine supply than Ms Rose.5 He
was involved for a shorter time and was Ms Rose’s ‘enabler’.6 From a starting point
of 12 years’ imprisonment,7 Goddard J sentenced Mr Murray to eight years, six
months’ imprisonment, and to lesser concurrent terms for his remaining offences.8
[4]
In imposing the lead sentences on Ms Rose and Mr Murray, the Judge
accepted largely, if not completely, the Crown’s estimate of the scale on which
Ms Rose had supplied methamphetamine over the full four year period. The Judge
sentenced Mr Murray on the basis that he was complicit in Ms Rose’s offence for a
period of one year, four months.9
[5]
Ms Rose and Mr Murray appeal their lead sentences. The essential basis on
which their appeals are advanced is that the scale of their offending was a disputed
aggravating fact the Crown was obliged to prove beyond reasonable doubt under
s 24 of the Sentencing Act 2002. They contend that Goddard J could not have been
satisfied beyond reasonable doubt they had offended on the scale she identified,
based on the evidence at trial.
[6]
As to the existence of a disputed aggravating fact, Ms Rose and Mr Murray
contend they were entitled to be heard at a dedicated hearing prior to sentencing.
They contend Goddard J was wrong to decide this disputed issue by minute dated
6 June 2012, based on the sentencing submissions then filed, without convening such
a hearing.10
[7]
Ms Rose contends, additionally, the Judge had no basis in the evidence on
which to hold that she offended throughout the full four year span. The intercepted
text traffic adduced at trial was confined to a seven-month period. The forensic
accounting evidence to the effect that over this four year span Ms Rose had income
from unidentifiable sources did not exclude the reasonable possibility that much of
5
6
7
8
9
10
R v Murray [2013] NZHC 1383 at [6]–[7] [Sentencing Notes for Appellant Murray].
At [6].
At [23].
At [34] and [35]–[37].
Sentencing Notes for Appellant Murray, above n 5, at [22(b)].
In R v Rose HC Palmerston North CRI-2012-054-860, 6 June 2013 (Minute (No 5) of
Goddard J) at [6] the Judge ruled a disputed facts hearing was not necessary.
that income was legitimate.
Goddard J herself accepted Ms Rose had earned
$80,000 as a dominatrix. She had also sold arts and crafts.
[8]
Secondly, Ms Rose contends the Judge had no basis on which to hold that the
cash found at her home during a search conducted on 20 March 2012 was profit from
methamphetamine sales. Ms Rose had two identified sources of income and, to the
extent that the cash found did relate to methamphetamine dealing, and not to
cannabis dealing, the Judge could not discount the reasonable possibility that she
owed a significant part to suppliers.
[9]
Thirdly, Ms Rose contends Goddard J could not securely conclude on the
evidence that her average mark-up on methamphetamine sales was 20 per cent. In
transactions with other wholesalers it might equally have been as high as 50 per cent.
And, to the extent that her mark up exceeded 20 per cent, this reduced the volume of
sales able to be extrapolated from the sum found. If her mark up were 50 per cent, it
reduced very dramatically.
[10]
For his part, Mr Murray appeals his sentence on the distinct ground that the
Judge overstated his role in Ms Rose’s offending and also sentenced him from too
high a starting point. He contends further that the Judge gave him insufficient credit
for his various mental impairments.
Issues on appeal
[11]
These various challenges give rise to two essential issues:
(a)
Whether, on the evidence given at trial, the Judge was entitled to
make her findings by inference beyond reasonable doubt as to the
scale on which Ms Rose and Mr Murray offended. It is the issue
which arises more typically when the Crown establishes the elements
of an offence on a circumstantial case.11
(b)
Whether the Judge’s decision not to hold a disputed facts hearing
resulted in the sentencing process miscarrying.
11
Haarhaus v R [2010] NZCA 41 at [18] onwards.
We will resolve the second of these issues first.
Offending
[12]
On 20 March 2012 the police executed a search warrant at Ms Rose’s home,
three kilometres out of Woodville, and discovered in large part the evidence
founding the Crown’s case against her and Mr Murray.
This began with the
measures they had taken to protect and facilitate the drug dealing operation,
providing their property with a high level of security.12
[13]
There was a light beam at the driveway entrance, which sounded a buzzer in
the master bedroom. There was a CCTV camera on the front of the house connected
to three monitors within the house. There was a police scanner, turned on at the time
of search, beside which was a list of the registration numbers of unmarked police
cars in the Palmerston North, Fielding and Dannevirke districts.
[14]
There were tick lists in Ms Rose’s handwriting.13 There were also coded lists
recording very large amounts of cash present at the property, totalling $764,000.
Some of the cash listed was buried in the garden. The balance was ‘carefully hidden’
in and around the property, in bundles comprising notes of large denomination.
There were thousands of unused snap lock bags in various sizes and a number of sets
of scales, some with traces of methamphetamine on them.
[15]
On either side of the bed in the master bedroom, there were loaded revolvers.
In other parts of the property the police found a pistol, a semi-automatic rifle, two
stun guns, a shotgun, rifles, a pen pistol, and ammunition.14 The Judge accepted that
some of these weapons were likely to have been used by Mr Murray for hunting, or
were collector’s items. She was satisfied that the revolvers, and the pen pistol, were
personal weapons.
[16]
The Judge noted that only 3.5 grams of methamphetamine was found in the
house and said that this was consistent with the inference that Ms Rose did not
12
13
14
Sentencing Notes of Appellant Rose, above n 2, at [2].
At [3].
At [4].
stockpile drugs at the property, but rather sourced, weighed and bagged the
methamphetamine she purchased and on-sold it very quickly; a fact “patently clear”
from her text messaging.15
[17]
The text messages produced at trial, the Judge said, covered a four month
period (in fact it was seven months). These were evidence of:16
[A] huge amount of activity and energy being expended by [Ms Rose] in
arranging deals and in the number of assignations [Ms Rose] arranged with
various people at various locations around the countryside at all hours of the
day and night. Often these assignations were arranged at short notice and
there seems always to have been urgency.
The Judge concluded:
The text messages make it clear that [Ms Rose was] able to source in
methamphetamine quite readily when orders were received, although the
availability of amount varied and the prices obviously fluctuated from time
to time.
[18]
Goddard J noted that Ms Rose, soon after she found her rural property, had
described it as “perfect” in a text to Mr Murray.17 The Judge agreed that, when
assessed as a place from which to supply methamphetamine, it was perfect. As
Ms Rose had then said, it was unremarkable and relatively isolated, but was only
three kilometres from State Highway Two and not far from the Manawatu Gorge.
[19]
Goddard J found the text messages produced at trial and the evidence as a
whole showed Ms Rose was “an astute and competent business woman”.18 The text
traffic schedule showed that she had supplied methamphetamine with a degree of
“organisation, command and control”, and that her network was considerable.19
[20]
The Judge found that of the 2837 text messages in evidence, 2742 were from
or to Ms Rose.20 The language in the messages indicated Ms Rose to be the primary
offender. The Judge quoted from two. In one Ms Rose said, “I had just restocked
with more expensive ink so put this lot on the books, which is part of the reason I
15
16
17
18
19
20
At [5].
At [5].
At [6].
At [7].
At [7].
At [7].
want it fast moving”.21 In the other she said, “If only I had that luxury, I just had
over 48 hours 2 make over 120K but did it … just”.22
[21]
Ms Rose, the Judge concluded, was “at or near the top of the supply chain” of
her network and, referring back to the second of the text messages just set out,
concluded that Ms Rose was able to “source and supply an enormous amount of
methamphetamine over a considerable period of time for a sizeable profit”.23 The
Judge also found that, as a high level supplier, Ms Rose must have routinely sold in
ounces.
[22]
On the view of the evidence most favourable to Ms Rose, the Judge said,
with reference to her earlier minute, Ms Rose was responsible for the supply of at
least 8.44 kilograms of methamphetamine, and her sales revenue was at least
$4,971,955, making her offence “one of the most substantial to come before the
Courts”.24
[23]
Also aggravating, the Judge said, was that on 6 August 2008, the start date for
the methamphetamine supply count, Ms Rose obtained her first WINZ payment after
release from a prison sentence of four years, three months.25 That sentence was
imposed in August 2006 for possession of methamphetamine for supply, possession
of cannabis for sale, and possession of precursors for the purpose of
methamphetamine manufacture. In August 2008, Ms Rose was on parole and she
remained so until July 2009.
[24]
The Judge accepted there was an issue as to when Ms Rose had begun to
offend after her release. As she said to Ms Rose, “there is simply no way of telling
from the jury’s verdict whether they accepted you were dealing in methamphetamine
for the entire period specified, or for any lesser period”.26 But, the Judge held, even
if Ms Rose had offended within a smaller timeframe, her reoffending, after serving a
21
22
23
24
25
26
At [7].
At [7].
At [8].
At [12], referring to Minute (No 6) of Goddard J, above n 2, at [37].
At [13].
At [15].
term of imprisonment for similar offending, showed that she had learned nothing
from her sentence.27
[25]
Finally, in imposing sentence on Ms Rose, the Judge did not accept that she
had derived significant income from arts and crafts work, or from prostitution work
as a dominatrix.
She disbelieved Ms Rose’s witnesses, called to establish that
Ms Rose had these other two significant income sources. She nevertheless assumed,
when calculating how much methamphetamine Ms Rose had supplied, that Ms Rose
had earned $80,000 as a dominatrix.28
[26]
Mr Murray, the Judge held, was “far less involved” than Ms Rose.29 His
offending began, she said, on about 6 November 2010, when Ms Rose sent him a
text offering him “the chance to make a quik buck”, at a time when he was one of
her customers. The Judge accepted that he and Ms Rose first began to live together
at her property in about December 2010.30
[27]
The Judge found that Mr Murray had acted as Ms Rose’s assistant. He had
put her in contact with his friends. He had bought vehicles and furniture and set up
the security systems. He had supervised the building of the garage. In a more
general sense, he had supported Ms Rose in the large scale sales she made in the one
year, four months they were together.
[28]
A text message from Ms Rose to Mr Murray, the Judge said, suggested that
he had sold methamphetamine for her. There were also texts in which she asked him
to account to her for money. However the Judge accepted Mr Murray did not sell
methamphetamine himself.31 Only 154 of the texts were from him, or to him, and
many were merely domestic. At most he was Ms Rose’s “enabler”.32
27
28
29
30
31
32
At [16].
Minute (No 6) of Goddard J, above n 2, at [23].
Sentencing Notes of Appellant Rose, above n 2, at [17].
Sentencing Notes of Appellant Murray, above n 5, at [5].
Sentencing Notes of Appellant Murray, above n 5, at [6].
Sentencing Notes of Appellant Murray, above n 5, at [6].
Sentencing submissions
[29]
In submissions on sentence, dated 27 May 2013, the Crown contended that
Ms Rose was responsible for the supply of 10.2 kilograms of methamphetamine,
during the full span of 6 August 2008–20 March 2012, and that her profit must have
been in the vicinity of $900,000. Her offence, the Crown contended, was the most
extreme of its kind known in New Zealand.
[30]
For the purpose of sentence, the Crown contended, Ms Rose lay at the upper
extreme of band four in R v Fatu,33 which for the supply of very large commercial
quantities of methamphetamine, 500 grams or more, attracts starting points in the
range of 10 years–life imprisonment. The Crown contended that Ms Rose should
receive life imprisonment and a minimum non-parole period of 10 years.
[31]
The Crown invited the Judge to sentence Mr Murray on the basis that he had
been engaged in the offence for one and a half years and was jointly responsible for
the supply of 3.375 kilograms of methamphetamine.
In his case, the Crown
contended for a 16–17 year starting point and, in principle, a minimum non-parole
period.
[32]
In his submissions the following day, Ms Rose’s then counsel contended that
she was to be sentenced on the basis that she was a mid-level wholesaler, dealing in
ounces or half ounces and sometimes in grams or less, who on the evidence had
supplied just over a kilogram (42 ounces in total).
[33]
Ms Rose, he accepted, lay within category four of R v Fatu, but at the
mid-point of that category, not at the upper extreme contended for by the Crown. He
contended for a four year starting point, with two one year uplifts for her previous
and concurrent offending, less a 15 per cent discount for remorse or voluntary
forfeiture.
[34]
Ms Rose’s counsel submitted the scale on which she offended was a disputed
aggravating fact, which the Crown had to prove beyond reasonable doubt under
33
R v Fatu [2006] 2 NZLR 72 (CA) at [34].
s 24(2)(c) of the Sentencing Act. Before sentence, he submitted, the Judge was
obliged to decide the scale on which Ms Rose had offended, consistent with the
verdict of the jury.34 As to that, he said, he wished to make supplementary oral
submissions.
[35]
The extent to which Ms Rose had offended, her counsel contended, could
only be inferred from the text messages produced. These messages occurred within
a span of months, not years, and the significance of the coded exchanges was
difficult in itself.
[36]
According to Ms Rose’s counsel, the Crown had wrongly extrapolated the
scale of her offending from the money found, assuming it to be profit from
methamphetamine sales. But that ignored her earnings from cannabis dealing and
sex work. It ignored the possibility that a significant part was owed to suppliers. He
invited the Judge to ignore the tick list debts. The Crown’s forensic accountant had
not treated them as assets, presumably because, even if they did relate to drugs, that
could have been cannabis. They might also have recorded debts either owed to or by
Ms Rose and Mr Murray.
[37]
Mr Murray’s counsel began his submissions by stating that on arraignment,
he had advised both the Crown and the Judge that Mr Murray disputed the role the
Crown ascribed to him and the extent to which he shared responsibility for the
methamphetamine supplied while he and Ms Rose were together. He signalled a
hearing before sentence might be needed to establish Mr Murray’s true criminality.
[38]
Mr Murray, his counsel contended, was only involved in a “joint enterprise”
with Ms Rose to a very limited degree. She was the primary offender. At most he
aided and abetted her. He assisted to conceal the extent of her offending. He
provided her with “security type services”. He passed messages to her. He collected
money for her. He “had no idea of the full gamut of the operation”.
34
R v Lunjevich [2012] NZCA 454 at [9].
[39]
To support the submission as to Mr Murray’s instrumental role, his counsel
listed 13 points of fact, derived from the evidence given at Ms Rose’s trial, which he
submitted the Judge needed to consider.
Minutes of Goddard J
[40]
In a minute of 30 May 2013 (Minute (No 4)) Goddard J adjourned the
sentence hearing to consider the issues of fact raised by counsel in their submissions
and to decide whether a disputed facts hearing was required.35
[41]
In a minute of 6 June 2013 (Minute (No 5)) the Judge held that a disputed
facts hearing was not needed, because she was “satisfied that sufficient evidence was
adduced at the trial to establish the quantity [of methamphetamine] involved”. 36 In
Minute (No 6), which the Judge issued later that day, she concluded that Ms Rose
must have supplied at least 8.44 kilograms of methamphetamine within the four year
span of her offence.37
[42]
The Judge then outlined her findings, as to which she said she had no
reasonable doubt, having applied the criminal standard of proof and having taken the
version of the evidence “most favourable to the prisoners provided that it was not
manifestly false or wholly implausible”.38
[43]
Within the four year span, the Judge found, Ms Rose made a profit of
$828,591 from methamphetamine sales, at an average mark up of 20 per cent, with
the result that her total revenue must have been $4,971,546.39 Goddard J noted that
75–90 per cent of her sales were made in ounces at an average sale price of $15,000;
or, if made in grams, at $900 a gram.40 She must then have supplied between
8.44-9.02 kilograms of methamphetamine.41
35
36
37
38
39
40
41
R v Rose HC Palmerston North CRI-2012-054-860, 30 May 2013 (Minute (No 4) of Goddard J).
Minute (No 5) of Goddard J, above n 10.
Minute (No 6) of Goddard J, above n 2.
Minute (No 6) of Goddard J, above n 2, at [23].
Minute (No 6) of Goddard J, above n 2, at [30].
Minute (No 6) of Goddard J, above n 2, at [35]–[36].
Minute (No 6) of Goddard J, above n 2, at [37].
[44]
In that analysis, the Judge said, she had made a series of conservative
findings favouring Ms Rose (and necessarily also Mr Murray).42 They were these:
(a)
As to cash spent, the Judge took account only of that recorded in
loyalty schemes or by receipt or shop record, even though the forensic
evidence was that this expenditure was a fraction of total cash spent.43
(b)
She treated $86,066, withdrawn in cash from bank accounts, as lying
within the aggregate of the identified cash spent and the cash found.
She chose not to add the cash withdrawn to that aggregate.44
(c)
She took no account of the debts recorded in the tick lists, which
might equally have been added to the cash spent and found.45
(d)
She accepted that Ms Rose had earned $80,000 as a dominatrix,
though Ms Rose could only establish by evidence earnings from that
source of $10,000.46
(e)
She accepted that Ms Rose had sold in ounces at an average price of
$15,000, even though the evidence was that the average sale price on
the market had increased across the four year span.47
(f)
She adopted the lowest average available percentage of sales made in
ounces, 75 per cent, reducing the total amount she found Ms Rose to
have supplied by up to 580 grams.48
[45]
As is evident from the Judge’s remarks on sentence, she did not depart from
these findings as a result of any submission made at the time of sentence.
42
43
44
45
46
47
48
Minute No 6 of Goddard J, above, n 2, at [11].
At [16].
At [18].
At [20].
At [21].
At [35].
At [32].
Scale of methamphetamine supply
[46]
In R v Fatu this Court, when fixing the bands within which
methamphetamine suppliers, importers and manufactures are to be sentenced, stated
that these bands overlap and that:49
Where an offender fits within a particular band will depend not just on the
quantity and purity of the drugs involved but also on 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 …
[47]
Later when speaking only of manufacture, this Court said that it will always
be fortuitous what evidence there will be of the scale of an offence when it is
discovered (a comment no less true of supply and importation offences). The Court
said this:50
Cases involving the manufacture of methamphetamine can be problematical.
Whether the scale of offending can be assessed depends very much on
chance; the evidence of manufacture on hand at the time of police
intervention, volumes of precursor materials located and the availability of
extrinsic evidence (eg in the form of electronic intercepts).
[48]
Against that reality, this Court then said, it was nevertheless obvious that:51
[I]t is open to a sentencing Judge to make findings of fact as to the extent of
past offending based on evidence, perhaps in the form of admissions,
intercepted communications, cash movements, tick lists and chemical
purchases. If there is no agreed summary of facts, such findings must be
made in accordance with s 24(2)(c) of the Sentencing Act 2002 (ie on the
basis of the criminal standard of proof).
[49]
In the later case R v Aram, this Court confirmed that a full disputed fact
hearing will normally only be needed after a plea has been entered and an
aggravating fact is in dispute.52 As Chambers J observed, after trial, and especially
where the trial Judge is to impose sentence, such hearings are “rarely necessary”:53
In those situations, it is for the sentencing judge to make up his or her mind
as to the facts based on what he or she considers was proved at the trial: see
s 24(1)(a). (Of course, the sentencing judge must accept as proved all facts,
49
50
51
52
53
R v Fatu, above n 33, at [31].
At [37].
At [38].
R v Aram [2007] NZCA 328 at [71].
At [71].
express or implied, that are essential to the jury’s findings of guilt:
s 24(1)(b).) The primary role of sentencing facts hearings is in cases where
guilty pleas are entered but Crown and accused are not able to agree [to]
some factual matters considered relevant to the sentencing exercise.
[50]
Disputed fact hearings after trial has occurred and the findings made may be
scrutinised in this Court on appeal. In Baird v R, an appeal against sentence after
such a hearing, this Court had to consider whether the trial Judge’s finding as to the
quantity of methamphetamine manufactured and supplied was sustainable.54 The
Crown had contended for two kilograms, the defence for no more than 300 grams.
The trial Judge found that it lay between 375–500 grams and that was upheld on
appeal.55
[51]
In that case this Court said this:56
It would be rare for the Crown to be able to prove beyond reasonable doubt
the exact amount that had been manufactured on a previous occasion. A
great number of convictions for manufacturing methamphetamine are
secured on the basis of circumstantial evidence where the amount previously
manufactured is assessed by reference to the quantity of precursor
substances known to have been acquired, the amount of cash known to have
been received and discussions between accused as to probable amounts
supplied. Generally, it will be impossible to be sure of an exact figure.
[52]
The Court noted the Fatu bands, and the starting points to be taken within
those bands “reflects more than a straight arithmetical assessment”.57 And so,
although the trial Judge’s finding as to the scale of the offending was “very
significant” it was not the only factor dictating the band applying or the starting
point.58
[53]
In Baird, the trial Judge had to infer what quantity of methamphetamine had
been manufactured and supplied from intercepted text messages and mobile
telephone conversations, from the amount of toluene purchased, and from the
substances, equipment, materials, methamphetamine and cash discovered.
54
55
56
57
58
Baird v R [2012] NZCA 430.
At [45]–[52].
At [49].
Baird v R, above n 54, at [51].
At [49]–[51].
[54]
He rejected the Crown’s 2.3–2.7 kilogram estimate founded on the toluene
quantity, because there were too many variables.59 He decided not to make any
finding of fact as to whether $310,000 cash, “carefully concealed” in Mr Baird’s
home, came from methamphetamine dealing, holding that there was insufficient
evidence as to its source.60
[55]
Nor, he said, could that sum be translated safely to a quantity of
methamphetamine manufactured and supplied. So much depended on the units in
which methamphetamine was sold and the unit price, which could vary widely.
There was also complicating direct evidence. The most he was prepared to infer was
that there had been manufacture and supply of “large commercial quantities”.61
[56]
In R v Haine, a decision on which the appellants rely, the trial Judge assessed
conservatively, by reference to the evidence at trial, the scale of drug dealing in
issue, mindful of the onus the Crown carries under s 24(2)(c), and how difficult it
can be “to establish the precise extent of offending” in drug dealing cases. 62 He
accepted that this might mean that those before the Court for sentence might escape
responsibility for offending on a more extreme scale than even the Crown
proposed.63
[57]
Against that background we turn first to the issue whether the Judge’s
decision not to hold a disputed facts hearing resulted in the sentencing process
miscarrying; and then to whether the Judge’s findings as to the scale on which
Ms Rose and Mr Murray offended were open to her on the trial evidence.
Lack of disputed fact hearing
[58]
As the cases we have referred to illustrate, there may need to be a disputed
fact hearing when, as here, the Crown advances a disputed “aggravating fact”, a fact
which “justifies a greater penalty or outcome than might otherwise be appropriate for
59
60
61
62
63
At [46].
At [45].
At [63].
R v Haine [2013] NZHC 66 at [11].
At [12].
the offence”, or where the Crown has to negate a “mitigating fact” justifying “a
lesser penalty or other outcome than might otherwise be appropriate”.64
[59]
The purpose of such a hearing, most usually after a guilty plea but sometimes
also after trial, is to enable the Crown to call evidence to establish the disputed
aggravating fact on which it relies, or to negate any disputed “mitigating fact” on
which the defence relies; and also to enable the defence to challenge any such
evidence and to offer evidence in reply. In each of the two instances the Crown
carries the onus of proof beyond reasonable doubt.
[60]
Such a hearing is obviously uncalled for where the aggravating fact in dispute
was “essential to a plea or a finding of guilt”,65 an issue which does not arise in this
case. As Goddard J found, it is also uncalled for where there has been a trial, at
which all the relevant evidence was given, and what is in issue is a question of
inference. That is the issue which does arise in this case.
[61]
Before the Judge decided the scale upon which Ms Rose and Mr Murray
offended, relying on their submissions and the trial evidence, she should have spoken
to counsel. Ms Rose may have been found guilty at trial but her counsel said in his
submissions that he wanted to make oral submissions, before sentence, as to the
scale of her offending. Mr Murray pleaded before or on the day of the trial. Strictly
speaking, the trial evidence did not bind him. Also, his counsel had signalled the
possible need for a disputed fact hearing.
[62]
As it turned out, the Judge’s decision to resolve the issue without a hearing
did not deprive Ms Rose or Mr Murray of anything essential. On this appeal neither
has contended that there should have been a full disputed fact hearing, at which
evidence should have been given beyond that at trial. The issue on this appeal, as it
was on sentence, is as to what inferences the Judge was entitled to take from the trial
evidence.
64
65
Evidence Act 2006, s 24(3).
Section 24(1)(b).
[63]
To the extent that Ms Rose’s trial counsel was unable to make oral
submissions with that purpose on sentence, we have the highly detailed submissions
on that issue from her present counsel. To the extent that Mr Murray’s counsel was
denied any opportunity to make submissions distinguishing Mr Murray from
Ms Rose on the basis of the trial evidence, we have his full appeal submissions also.
Span of Rose offending
[64]
Ms Rose’s first substantive ground, in which Mr Murray joins, is that the
Judge had no secure basis in the trial evidence from which to infer that Ms Murray
supplied methamphetamine across the full four year span, beginning on 6 August
2008, the date of her first WINZ payment after release from prison for her earlier
sentence.
[65]
Ms Rose accepts that the Crown’s forensic evidence demonstrates that over
the four year span she received income from unidentifiable sources. She relies,
however, on the fact that the Judge accepted that she might have earned $80,000 as a
dominatrix and contends that the Crown cannot exclude the possibility that much of
her income from unidentifiable sources might have been legitimate.
[66]
Ms Rose also accepts that the Judge was entitled to rely on the text message
traffic in which she was engaged within the four year span but she points out that the
text traffic produced at trial only covered two periods: five months (early September
2010–February 2011) and two months (21 January 2012–20 March 2012). The
Crown did not produce any texts for the balance of the four years.
[67]
As the Crown submits in reply, however, the Judge was also entitled to take
into account that as at 6 August 2008, Ms Rose’s only asset was a house bus and she
had no significant savings. Yet in January 2010, she purchased a 2002 Holden
SS V8 and paid $13,700 in cash and on 18 November 2010 paid $50,000 cash in part
payment for her Woodville property.
[68]
Decisively, we agree with the Crown, the Judge was obliged to give weight to
the cash found on the search made on 20 March 2012. That was an extraordinarily
large sum. Ms Rose’s activities in arts and crafts and as a dominatrix did not begin
to explain it. The very fact that she held it at home inevitably invited the inference
that she had it unlawfully. The text message traffic, though limited in span, supports
the Judge’s finding that this was, predominantly, the fruit of methamphetamine
dealing.
[69]
That aside, the Judge was also right to conclude that, even if Ms Rose did
offend within a shorter span, and whether or not that coincided with the text traffic
span, that simply meant she had dealt on a more intensive scale. That cannot affect
her culpability. The primary issue remains on what scale Ms Rose offended.
Alternative calculation concerning Rose offending
[70]
Ms Rose challenges the Judge’s finding that within the four year period, she
supplied 8.44 kilograms of methamphetamine. She contends the Judge could not
discount as a reasonable possibility that she had supplied at most, between
1.8-2 kilograms.
[71]
Ms Rose first challenges the Judge’s finding that the cash found was profit,
not turnover. Contrary to the Judge’s finding, she contends, and we accept, less than
half of the cash found was deliberately concealed.
More than half was easily
accessible in various parts of the house. This accessibility, she contends, invites the
inference that she had it ready at hand to pay suppliers.
[72]
Secondly, Ms Rose contends, even if the Judge could conclude that she was
close to the top of the supply chain, and to a manufacturer, there was no hard
evidence as to her relationship with her suppliers, or with those whom she supplied,
or as to the terms of trade.
[73]
Thirdly, Ms Rose contends, the Judge failed to take into account that she
purchased methamphetamine on credit. In the text, dated 8 November 2010, to
which the Judge referred on sentence, Ms Rose obtained methamphetamine worth
$120,000 on 48 hour credit. She clearly lacked the means, at that point, to make that
purchase without credit. She must have been dependent on her turnover and the fact
that she accepted 48 hour credit shows that she was hard pressed.
[74]
Fourthly, Ms Rose contends, the Judge assumed that her average mark-up
was 20 per cent but even the Crown’s own expert witness accepted that this mark-up
was conservative and no more than an estimate. His evidence was that a number of
variables were involved. Goddard J could not reasonably exclude the possibility that
she sold at a higher mark-up.
[75]
Finally, Ms Rose contends, Goddard J could not exclude as a reasonable
possibility that within the weeks before the search she had been involved in large
scale transactions with other wholesalers at a 50 per cent mark-up, and that a
significant part of the cash found was still owed to her own supplier. In that event,
she contends, she could not have been held accountable on sentence for any greater
supply of methamphetamine than 1.6 kilograms.
[76]
Ms Rose then accepts that she has to be accountable for a further profit from
methamphetamine supply of $143,761: being the difference between the cash found
and her income received or spent over the four years, established forensically. This
profit, she contends, was derived most reasonably from lower level supplies and,
assuming that to be so, she must be accountable for a further 0.2–0.4 of a kilogram.
[77]
In short Ms Rose contends that the largest supply she can be held accountable
for over the four year span lies between 1.8–2 kilograms.
Starting point for Rose
[78]
We conclude that the Judge was entitled to sentence Ms Rose on the basis
that she was an ounce dealer selling at a 20 per cent mark-up. Her trial counsel
invited the Judge to sentence her as an ounce dealer and the Judge was entitled to
rely on the Crown’s expert opinion evidence as to the mark-up.
[79]
The Judge was also entitled to hold that the cash found was largely the result
of methamphetamine sales, and that it was largely, if not completely, profit. Nothing
can be taken from where the cash was found within the house and whether it was
concealed. What was more important was, as the Judge held, that only a small
amount of methamphetamine was found. Also, there was a complete absence of any
record, amongst the tick lists and the coded cash lists found, which suggested that
any part was owed to suppliers.
[80]
The possibility that the cash found was the result of large scale, wholesale
transactions at a 50 per cent mark-up was never advanced by Ms Rose’s trial counsel
on sentence and has no basis in the evidence. It never loomed as a reasonable
possibility such that the Judge was obliged to exclude it in the finding she made.
Nor is there any better basis for it now.
[81]
The Judge’s finding that over the four years Ms Rose must have supplied
8.44 kilograms of methamphetamine called, we accept, for a series of inferences
relying on the cash found. But on this appeal, Ms Rose herself, concedes that she
must at least have supplied 1.6–2 kilograms of methamphetamine. And, even if the
Judge had chosen to express her scale finding more tentatively, there is no plausible
basis on which she needed to reduce it much below her 8.44 kilogram estimate.
[82]
In then taking an 18 year starting point for Ms Rose’s offence, the Judge was
within the range of starting points taken in the like cases to which she was referred;
and we begin with the two that are decisions of this Court, because they illustrate the
range of factors that come into play when a starting point is fixed.
[83]
In the first, R v Graaf, in which two couriers appealed their sentences, the
quantity of methamphetamine imported was the most significant consideration and
this Court upheld an 18 year starting point in the case of one courier, who had
imported six kilograms (having earlier imported 11 kilograms).66 It upheld a 15 year
starting point as to the other courier, who imported 2.84 kilograms.
[84]
Quantity is not, however, always the decisive factor. In R v Rhodes this
Court upheld a sentence of life imprisonment for the manufacture of 1.4 kilograms
and for an offer to supply 365 grams.67 The decisive factor there was that the
offender was at the centre of a major manufacturing and supply ring and had served
part only of a 14 and a half year sentence in Australia for serious drug offending.68
66
67
68
R v Graaf [2007] NZCA 43 at [72].
R v Rhodes [2009] NZCA 486 at [91]–[95].
At [87].
[85]
The Judge was also referred to a number of sentences imposed in the High
Court with starting points in the range of 15–20 years for quantities manufactured,
imported or supplied in the range 1.16 kilograms–5.4 kilograms.69 Set against these
comparable cases, the 18 year starting point the Judge took for Ms Rose, who had
offended within a four year span on a very significant scale, was well open to her.
[86]
There can then be no issue as to the correctness of the 20 year sentence
imposed on Ms Rose. That resulted from the two uplifts the Judge then made, each
of one year, for Ms Rose’s concurrent firearm offending and for her previous
convictions, culminating in the four year sentence in August 2006. As to those there
is no challenge. Those uplifts had been invited by Ms Rose’s counsel on sentence.
Sentence for Murray
[87]
In sentencing Mr Murray, Goddard J accepted his counsel’s submission as to
his role in the supply of methamphetamine. She was satisfied Mr Murray was “far
less involved” than Ms Rose.70 His offending “spanned not only a lesser period but
was less significant”.71 It extended for one year, four months and he did not sell
methamphetamine himself. At most he assisted Ms Rose to do so.
[88]
There was no issue, as the Judge said, that Mr Murray was to be sentenced
within band four of R v Fatu. In fixing his starting point at 12 years, the Judge did
not hold him accountable for the supply of 3.19 kilograms, fixed arithmetically.72
Rather, she held him accountable for playing a lesser instrumental part in a large
scale methamphetamine supply, aggravated by the presence of firearms. She fixed
his starting point by express reference to her 18 year starting point for Ms Rose.73
[89]
The Judge uplifted that 12 year starting point by one year to reflect
Mr Murray’s firearms offending.74 She elected not to treat his previous convictions
69
70
71
72
73
74
R v Huang HC Auckland CRI-2006-019-8458, 8 May 2009 at [34]–[35]; R v Huang
HC Auckland CRI-2010-092-14540, 9 November 2010 at [13]; R v Matthews [2012] NZHC
3545 at [12].
Noted above at [26].
Sentencing Notes for Appellant Murray, above n 5, at [5].
At [20]–[21].
At [23]–[24].
At [27]–[32].
as aggravating. She allowed him a 15 per cent discount for his mental and cognitive
problems. She did not allow him any discount for remorse but did allow him a
25 per cent discount for his plea, even though he pleaded to his lead offence at the
beginning of the trial.
[90]
Accordingly, for Mr Murray’s lead offence the Judge sentenced him to eight
years, six months’ imprisonment. In sentencing him concurrently to two and a half
years’ imprisonment for the firearms offences, she remarked that he was more
responsible for those offences than Ms Rose.75
Starting point for Murray
[91]
On this appeal Mr Murray first contends, as he did on sentence, for a five
year starting point, relying on a number of sentencing decisions in which comparable
sentences were imposed on secondary players in large scale drug offending.
[92]
The starting point the Judge took, however, at the bottom of band four of
R v Fatu,76 was correct in principle. Mr Murray had to be sentenced within band
four, and a 12 year starting point was at the bottom of that range. The Judge could
not in principle have taken a starting point for him at the bottom of band two.
[93]
Mr Murray was more than merely instrumental. As he himself conceded in
submissions on sentence, he at least occasionally “facilitated” Ms Rose’s
methamphetamine sales to his friends. In two text exchanges to which we have
referred, which may or may not have involved his friends, he facilitated ounce sales.
He may well have been fortunate in the Judge’s finding that he had not made sales
himself.
Mental health discount for Murray
[94]
Mr Murray next contends, relying on the decision of this Court in
Blackwood v R, where a 40 per cent discount was given on appeal in place of a
25 per cent discount, that he should have been accorded an equivalent discount on
75
76
At [41].
R v Fatu, above n 33.
sentence for his mental and cognitive problems.77 Fifteen per cent was manifestly
negligible.
[95]
On sentence Mr Murray contended only for a 25 per cent discount and the
Judge made no error in taking that as a reference point. She was never invited to
consider anything higher. It may be, however, that counsel and the Judge were then
unaware of this Court’s decision in Blackwood and so we do not regard that as
decisive.
[96]
One controlling principle that the Judge had to take into account when she
sentenced Mr Murray, however, as she evidently recognised, was that as a drug
offender Mr Murray’s personal circumstances had to be subordinated to the need for
denunciation and deterrence.78 Mr Blackwood, by contrast, was a sexual offender.
More importantly, a discount for mental and cognitive problems was only open, in
principle, if Mr Murray’s problems played a causative part in his offending, or
rendered less appropriate, or more subjectively punitive, a sentence of
imprisonment.79
[97]
Mr Blackwood qualified on both these counts. He had suffered a serious
motor vehicle accident, “which left him with serious physical injuries and a severe
head injury” in the form of frontal lobe damage.80 He had suffered moderately
severe loss of consciousness and six weeks of amnesia. Even then, the 40 per cent
discount this Court allowed him on appeal took into account that he was 19, was
remorseful and lacked previous convictions.81
[98]
Another decision of this Court, Weaver v R, is also illustrative.82 There, a
woman who was not the appellant, and who offended while suffering from actual
delusions, received a 20 per cent discount, which this Court described as
conservative.83 Her co-offender, the appellant, who offended while on medication
77
78
79
80
81
82
83
Blackwood v R [2011] NZCA 143 at [39].
Chen v R [2009] NZCA 445, [2010] 2 NZLR 158 at [174] and [188].
See E (CA689/2010) v R [2010] NZCA 13 at [68]–[70].
Blackwood v R, above n 77, at [6] and [47].
At [35]–[37].
Weaver v R [2013] NZCA 242.
At [2] and [3].
for depression and associated anxiety and paranoia, received no discount and that
decision was upheld on appeal.84
[99]
Mr Murray, as the Judge recognised, had a history of “mental and cognitive
problems” following a traumatic brain injury in 2008.85
He suffered cognitive
slowness, poor concentration and impaired judgment. When examined forensically
in 2009 he showed “problematic irritability, impairment of motivation and impulse
control”.86 More recently, as the Judge also noted, he had been described by a
forensic psychologist as having suffered “high psychological vulnerability”.87
[100] The most lasting consequence of Mr Murray’s 2008 head injury, however,
was persistent depression and while the Judge treated his “impaired judgment” as
causally related to his offending, no such definite diagnosis was made. 88 While he
was described in 2009 as a poor decision maker, a later examination concluded that
his “insight and judgment were essentially intact”.89
[101] Nor was it suggested on this appeal that Mr Murray’s mental and cognitive
difficulties made a sentence of imprisonment inappropriate or disproportionately
punitive. Furthermore, as the Judge held, his condition had been “significantly
exacerbated” by his decision to continue to take illicit drugs.90 That is why she
confined his discount to 15 per cent. In that she made no error.
Conclusion for both appeals
[102] In the result, we find that the Judge made no error of principle or evaluation
in the sentences she imposed on Ms Rose and Mr Murray. They are not manifestly
excessive sentences. We uphold those sentences and dismiss these two appeals.
Solicitors:
Strachan O’Connor, Upper Hutt for Appellant Rose
Crown Law Office, Wellington for Respondent
84
85
86
87
88
89
90
At [51]–[54].
Sentencing Notes of Appellant Murray, above n 5, at [29].
At [29].
At [30].
At [31].
At [31].
At [31].