CADE v NEW ZEALAND POLICE [2023] NZHC 3657

CADE v NEW ZEALAND POLICE [2023] NZHC 3657 [14 December 2023]IN THE HIGH COURT OF NEW ZEALANDPALMERSTON NORTH REGISTRYI TE KŌTI MATUA O AOTEAROATE PAPAIOEA ROHECRI-2023-454-16[2023] NZHC 3657BETWEEN ALAN CADEAppellantAND NEW ZEALAND POLICERespondentHearing: 15 November 2023Appearances: H M S Cheeseman for AppellantE Pairman for RespondentJudgment: 14 December 2023JUDGMENT OF LA HOOD J(appeal against conviction and sentence)[1] Mr Cade appeals against conviction and sentence following a judge-alone trialbefore Judge I C Carter in the Palmerston North District Court on 18–19 July 2022 oncharges of sustained loss of traction,1 failure to stop for police while operating thevehicle in a dangerous manner,2 and possession of methamphetamine.3[2] On 30 May 2023, he was sentenced on the sustained loss of traction tosix months' disqualification (from 26 October 2020), on the failure to stop to a $3,500fine and six months' disqualification (from 26 April 2021), and on the possession of1 Land Transport Act 1998, s 36A(1)(c) (maximum penalty of three months' imprisonment or a finenot exceeding $4,500; mandatory disqualification for six months or more).2 Land Transport Act, ss 52A(1)(a)(ii), 52A(3), 52A(6) and 114(2) (maximum penalty of a fine notexceeding $10,000; mandatory disqualification for six months).3 Misuse of Drugs Act 1975, ss 7(1)(a) and (2) (maximum penalty of six months' imprisonment ora fine not exceeding $1,000 or both).methamphetamine he was convicted and discharged. Mr Cade was also convicted anddischarged on a charge of resisting a constable acting in the execution of their duty.4The prosecution case at trial[3] The prosecution alleged that, on 26 October 2020 at about 10:30 am, Mr Cadewas driving a black sedan along State Highway 56 heading towards Palmerston Northwhen police saw the car doing two "donuts" (360 degree turns with a sustained loss oftraction) in the middle of the road.[4] The police then activated their lights and the car accelerated away at speed.The car turned onto Longburn-Rongotea Road and continued to accelerate away frompolice at high speed, passing a number of other cars. Eventually the police lost sightof the car.[5] Mr Cade was then stopped on Green Road by another police car. The policecar that had been chasing him arrived shortly after, and the officers identifiedMr Cade's car as the vehicle they had been chasing. Mr Cade was said to be sweatyand short of breath. He was arrested and searched on arrival at Palmerston Northpolice station. The police found a small bag in his possession containing a snap lockbag of methamphetamine, along with approximately $8,800 in cash. Mr Cade thengrabbed the bag of methamphetamine and put it in his mouth. Police attempted to getthe bag off Mr Cade which turned into a struggle. Mr Cade was handcuffed, and thebag retrieved from his underwear following a pat down search.[6] Mr Cade denies that he was the driver of the black sedan and that he hadpossession of the methamphetamine.Judge Carter's reasons for verdict[7] Judge Carter started by noting the onus and standard of proof, 5 then set out theissues to be determined,6 his approach to assessing the witnesses' evidence,7 and the4 New Zealand Police v Cade [2023] NZDC 10880 [Sentencing decision].5 New Zealand Police v Cade [2022] NZDC 7571 at [3]–[5] [Reasons for verdict].6 At [6]–[8].7 At [10]–[13].uncontested facts.8 This included outlining the evidence of Mr Wilson, who gaveexpert road analysis evidence for the defence.9[8] Judge Carter then considered the disputed evidence. Mr Cade gave evidencethat his car was in poor condition at the time of the alleged offending and its electronictraction control meant it could not do more than 70 km/h. Mr Cade explained that hehad arranged to take his car to his friend Lance's place in Sanson to be checked out onthe day he was pulled over. He said he had also been purchasing paints for his car(around the time police allegedly spotted the black vehicle doing burnouts) and thenwas planning on seeing his friend, Mike. When it transpired that Mike was not inPalmerston North, Mr Cade went to see Lance to diagnose his car problems. He saidthat, at some point on the highway, he was overtaken by a black Holden CommodoreR8 Club Sport.10[9] Mr Cade claimed the methamphetamine was not his. He said that he tried toswallow it because he was worried he would be charged with possession for supplyand lose care of his children. He claimed to have swallowed a large amount of thesubstance but agreed he had put the snap lock bag down his boxers.11[10] Judge Carter gave the following reasons for finding the charges proven:[97] I must go on to consider whether the prosecution evidence establishesthe prosecution case beyond reasonable doubt.[98] The key police witnesses were Constables Barham and Winiata. Theevidence of both was matter of fact and for the most part was undisputed.Their evidence was not overstated. Their indications of various times of traveland speeds were carefully expressed as estimates, as were the numberdonut/burnout rotations which they described seeing. They acknowledgedthat there were some points in the pursuit when they lost sight of the blacksedan. The time when they lost sight of the black sedan from the Oroua riverbridge was, based on Mr Wilson's calculations, plainly greater than theirestimate of between 30 seconds to a minute. But Constable Winiata had seenthe black sedan going down Green Road as the officers drove past. They didnot otherwise see any other black sedan during the entire pursuit lasting six toseven minutes.8 At [14]–[63].9 At [63]. Mr Wilson's evidence included that there was no attempt made to match the marks onthe road against Mr Cade's car, nor was there an attempt to inspect his tyres.10 At [81]–[89].11 At [90]–[91]. Medical evidence later came back suggesting that no methamphetamine had beeningested/absorbed by Mr Cade.[99] There was a conflict of evidence as between Constables Winiata andBarham in that Constable Winiata said that she had retrieved Mr Cade's blackman bag at his request from his car before leaving in the police patrol car forPalmerston North Police station. Constable Barham's evidence was thatMr Cade himself had retrieved the black man bag. It was Constable Barhamwho spoke directly with Mr Cade and arrested him. Her specific recollectionthat Mr Cade retrieved the bag arose from her understandable anxiety at whatMr Cade was trying to retrieve from his car. I think Constable Winiata waslikely to be mistaken on this specific point and I accept Constable Barham'sevidence.[100] I accept Mr Wilson's evidence that best practice would have providedadditional evidence. However, what the available evidence establishes is thata black sedan was seen by Constables Barham and Winiata doingdonuts/burnouts of approximately one to two rotations, very near to Mr Cade'shome. Mr Cade was the owner and driver on the day of a modified and highperformance dark grey/black sedan and was in possession of a Police scannerdevice used to monitor police communications.[101] The black sedan seen doing donuts/burnouts was pursued byConstables Barham and Winiata for six to seven minutes with sight of it beinglost for only for short periods when overtaking and for a period of more thana minute immediately prior to coming upon Mr Cade's stopped car inGreen Road. During the pursuit lasting an estimated overall six to sevenminutes, no other black sedan was encountered by any of the Police Officersand none was apparent on the Challenge service station CCTV footage. Theinference is irresistible that the pursued black sedan was Mr Cade's Falcon andMr Cade was the driver.[102] The police have proved beyond reasonable doubt that Mr Cade wasthe driver of the black sedan which Constables Barham and Winiata saw doingdonuts/burnouts and which accelerated away when they attempted to pursueit with red and blue flashing lights. Mr Cade without reasonable excuseoperated his vehicle in a manner to undergo a loss of traction. Given theexcessive speeds at which he was travelling, Mr Cade was driving his vehiclein a dangerous manner and failed to stop for red and blue flashing lights forthe duration of the pursuit.[103] The police have proved beyond reasonable doubt that Mr Cade hadpossession of methamphetamine. He was aware of where themethamphetamine was as shown by his insistence on retrieving the black manbag containing methamphetamine from under the seat of his car. He hadcontrol of it because it was in his bag and in his car and he had personalcustody of it. He intended to have control of it and attempted to exercise thatcontrol by grabbing it from police and refusing to surrender it during aprolonged struggle. He was aware that the substance was methamphetaminegiven the likelihood that he would not have othe1wise made such extrememeasures to take it from police and his own evidence that he grabbed itbecause he was worried that he would be charged with possession ofmethamphetamine for supply.[11] Finally, Judge Carter briefly mentioned disclosure issues that occurred duringMr Cade's prosecution, stating:[104] After the hearing, the defendant applied for an order for further andparticular disclosure by police under s 30 Criminal Disclosure Act 2008. Igranted the application and made an order accordingly on 7 October 2022.The Police position is that this was complied with. A memorandum of28 October 2022 on behalf of the defendant submits that the post-hearingdisclosure provided includes additional material not previously provided thatmay have assisted the defendant's counsel to prepare more fully forcross-examination of police witnesses at the hearing. Counsel for thedefendant also suggests there may be other relevant material (apparent fromwhat now has been disclosed) that has not been disclosed. Counsel for thedefendant asks the Court to consider these factors when preparing thisjudgment. I have done so and acknowledge that it is unfortunate that fulldisclosure was not completed prior to the hearing. However I do not think theidentified shortcomings of disclosure have prejudiced a fair trial of thedefendant.Sentencing decision[12] Mr Cade was sentenced by Judge Carter on 30 May 2023. The sentence appealonly challenges the fine imposed on the failing to stop charge. The relevant extractfrom Judge Carter's sentencing notes can be set out in full:12[16] I do, however, consider that a fine is appropriate on the failing to stopfor flashing blue and red lights charge that arose from an attempt to evadepolice in pursuit and would have necessarily involved a significant degree ofdanger to yourself, to police in pursuit, and the driving public and I consider,given that the maximum fine is up to $10,000, that a reasonably substantialfine is justified for that particular charge. I do not intend to adopt the coursethat Ms Cheeseman asked me to follow and impose a suspended sentence only.[17] So overall the sentence that I am going to impose is firstly on thesustained loss of traction charge there will not be any fine, but you will beordered disqualified from driving for six months backdated to 26 October2020. On the failing to stop for red and blue flashing lights, you will be fined$3,500 and you will be ordered disqualified from driving for six months from26 April 2021 and on the possession of methamphetamine charge, you areconvicted and discharged. On the resisting a constable acting in the executionof his duty charge, you are convicted and discharged. So that concludessentencing, Mr Cade.12 Sentencing decision, above n 4.Approach on appealConviction appeal[13] An appeal against conviction is brought pursuant to s 232 of the CriminalProcedure Act 2011. Under s 232(2), a first appeal court must allow an appeal whereit is satisfied that:(b) in the case of a Judge-alone trial, the Judge erred in their assessmentof the evidence to such an extent that a miscarriage of justice hasoccurred; or(c) in any case, a miscarriage of justice has occurred for any reason.[14] A miscarriage of justice is defined in s 232(4):In subsection (2), miscarriage of justice means any error, irregularity, oroccurrence in or in relation to or affecting the trial that—(a) has created a real risk that the outcome of the trial was affected; or(b) has resulted in an unfair trial or a trial that was a nullity.[15] Appeals under s 232(2)(b) are conducted by way of rehearing.13 If the Courtcomes to a different view on the evidence, the trial judge will necessarily have erred,and the appeal must be allowed. However, the appellate court is not to consider theissues de novo. It is for the appellant to show that an error has been made, taking intoaccount the advantages a trial judge may have had in assessing the evidence. Wherethe challenge on appeal is to credibility findings based on contested oral evidence, anappellate court will exercise 'customary' caution in overturning the Judge's findings.14[16] As made clear by s 232(4), not every error, irregularity or occurrence in thecourse of a trial will amount to a miscarriage of justice. Two things are ordinarilyrequired to establish a miscarriage of justice. It must first be shown that somethinghas gone wrong with the trial in a relevant way. Second, it must be shown that whathas gone wrong has led to a real risk that the outcome of the trial was affected. Such13 Sena v R [2019] NZSC 55, [2019] 1 NZLR 575 at [32].14 At [38].a real risk arises if there is a reasonable possibility that a more favourable verdict mighthave been delivered if nothing had gone wrong.15Sentence appeal[17] I am required to allow the appeal if satisfied that there is an error in the sentenceand a different sentence should be imposed. Otherwise, I must dismiss the appeal.16In most sentence appeals brought by a defendant, the appeal court will not interveneunless the sentence is manifestly excessive. Whether the sentence is manifestlyexcessive is to be assessed in terms of the final sentence imposed, rather than theprocess by which it was reached.17Grounds of appeal[18] Mr Cade submits that a miscarriage of justice has occurred because:(a) the Judge placed too much weight on the evidence of the police officers;(b) the Judge gave insufficient reasons for discounting the evidence of theappellant;(c) the Judge placed an improper onus on Mr Cade to prove portions of thedefence, rather than properly directing himself as to the onus remainingon the police;(d) the Judge gave insufficient reasons for accepting Constable Stewart'sevidence of the lawfulness of a search pursuant to s 11(3) of the Searchand Surveillance Act 2012;(e) the Judge made findings in relation to the defendant's knowledge whichwere not supported by the evidence;15 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189; Matenga v R [2009] NZSC 18, [2009] 3NZLR 145; Sungsuwan v R [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J.16 Criminal Procedure Act, s 250.17 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [30]–[36].(f) the Judge gave insufficient consideration to the medical evidenceindicating the appellant had not consumed methamphetamine;(g) the Judge did not properly appreciate or consider the impact of thedisclosure failures of police; and(h) the Judge did not properly appreciate and consider the challenge to thesearches of Mr Cade's bag and his person.[19] In respect of the sentence appeal, Mr Cade submits that the Judge made amaterial error in setting the fine by reference to the maximum penalty for the offence,rather than on the gravity of the offending and the principles of the Sentencing Act2002.Assessment of conviction appealGround one — weighting of police evidence[20] Mrs Cheeseman submitted that the defence expert's evidence that the policeofficers must have lost sight of the car for more than a minute, the fact they did notcompare the road markings with Mr Cade's car, the description by Constable Winiataof the car being a Holden, and the invoice produced by Mr Cade from the Panel andPaint shop should have left the Judge in a state of reasonable doubt. At the very least,he should have given more reasons for accepting the police evidence and rejectingMr Cade's evidence.[21] In respect of the absence of road marking analysis, I do not consider it helpfulon appeal to refer to evidence that could have been obtained but was not. It is a factof finite police resourcing that there will often be investigatory steps that could havebeen taken but were not. The case must be determined on the evidence that wasadduced not on evidence that might have been obtained.[22] The dispute about how long the officers lost sight of the car is of little import.Whatever the exact timing, shortly after losing sight of the car and deciding to followthe other route it might have taken, they came across Mr Cade's car stopped by anotherofficer. The police evidence was that it was the same car the officers had beenfollowing.18 This evidence combined with the evidence that they did not see any otherblack sedan during the entire pursuit, that none was seen on the Challenge servicestation CCTV footage, and the car was seen doing "donuts" very close to Mr Cade'shome, provided a compelling inference that it was Mr Cade's car.[23] In respect of the invoices for the paint shop, Mrs Cheeseman submitted theJudge should not have dismissed their relevance. She noted that although the firstinvoice produced had no time on it, the second document, a computer screenshot, hada time of 10.22 am. She also relied on a passage of evidence where the defendantasserted that the invoice showed "Cade cash sale" and the prosecutor appeared toaccept this.19 However, a close analysis of that document indicates the relevant entriesare "trade cash sale". Some of the entries contain the full word "trade" and some cutoff the "tr" in the word "trade" so they appear as "ade cash sale". I accept therespondent's submission that there is no evidence the documents contain Mr Cade'sname.[24] The matters relied upon in the invoice documents are hearsay statementscontained in business records, the admissibility of which is governed by s 19 of theEvidence Act 2006. The documents were not produced by the person who suppliedthe information used to create them, and no explanation for them failing to be soproduced was given. The point of these rules is to ensure the person who created therecord can be called as a witness to confirm its legitimacy and give evidence about itif required. The documents were produced without objection (although incircumstances where it seems no notice was given under s 22 of the Evidence Act),but that did not mean the Judge was required to place weight on them. I consider theJudge, having regard to the failure to call the person who created the documents, andthe advantage he had in seeing and hearing Mr Cade give evidence, was entitled togive them little weight. I do not consider the Judge reversed the onus of proof by18 For example, Sergeant Barnham said it "looked the same as the vehicle we were chasing": NOE52/10-20. When challenged in cross-examination about police communications (comms) beingtold it was a Holden, she said "we had discussions in the vehicle, it was either a Ford or a Falcon,black sedan vehicle" but did not tell comms this: NOE 56/10-20. When it was put to her that thereason she knew it was the same car was because it was a black sedan, Ford of Falcon, sheanswered "Along with other stuff, yes."19 NOE, p 99.pointing out that these documents were of little evidential value without hearing fromthe person who created them.[25] Finally, I do not accept Mrs Cheeseman's submission that the Judge did notengage with Mr Cade's evidence regarding the traction control of his car. The Judgefound that there was nothing beyond Mr Cade's own assurances that his tractioncontrol was permanently on, entitling him to prefer other evidence before him.20Grounds two and three — insufficient reasons for discounting Mr Cade's evidence andreversing the onus of proof[26] Mrs Cheeseman takes issue with the Judge's conclusion that Mr Cade'sevidence was "unconvincing".21 She submits that Judge Carter did not give sufficientreasons for this finding and incorrectly required Mr Cade to corroborate his ownaccount of the events in a way that amounted to a reversal of the onus of proof. Sherelies on the Judge's findings that independent evidence the car was incapable of doingmore than 70 km/h would have been easily obtainable,22 and that the invoices relatingto the purchase of paint were not linked to Mr Cade.23 She also relies on the Judge"viewing with scepticism" Mr Cade's evidence that he was overtaken by a blackHolden.24[27] I have already found that there was no reversal of the onus of proof in respectof the paint shop invoices. I also do not consider the Judge's finding about the tractioncontrol, or his rejection of Mr Cade's evidence about seeing a black Holden had theeffect of reversing the onus of proof. The Judge directed himself about the onus andstandard of proof at the outset of his decision.25 He was entitled to note the absence ofreadily obtainable evidence about the mechanical capability of Mr Cade's car that itwas entirely within Mr Cade's control to obtain. This was just one aspect of hisdecision to reject Mr Cade's evidence. Finally, rejecting Mr Cade's evidence aboutseeing a black Holden was not accompanied by a suggestion Mr Cade could have20 At [93]21 At [92].22 At [93].23 At [94].24 At [95].25 At [3]-[5].called evidence to corroborate it. The Judge simply rejected this assertion asimplausible and gave his reasons for doing so.Ground four — the Judge gave insufficient reasoning for accepting the lawfulness ofsearching Mr Cade's bag and his person[28] The evidence was that the search at the police station was a routine searchunder s 11 of the Search and Surveillance Act that is conducted on everyone taken intopolice custody who is to be "locked up".26[29] Mrs Cheeseman accepts that the purpose of such searches is twofold:protecting a detained person's property, and to remove items that may be used to harmthemselves or others.27 Mrs Cheeseman also accepts there is no requirement for thereto be reasonable grounds to believe particular items will be detected before such asearch is conducted. It was common ground that s 125 of the Search and SurveillanceAct applies, and s 125(1)(i) expressly allows a search of a person to include searchingitems (such as bags) that they are carrying or are in their physical possession orimmediate control.[30] Mrs Cheeseman questioned whether this could include a bag that was in policepossession and control rather than Mr Cade's following his arrest. Section 11 enactsa longstanding common law search power to enable protection of a person's propertyby recording and itemising their property when they are to be locked up in policecustody.28 It would defeat this purpose for bags to be excluded because they have beensecured by the police at the time of arrest rather than when the search commencesinside the police station. In these circumstances the words "in the person's physicalpossession or immediate control" must be interpreted as meaning in the person'spossession or control at the time custody commences, which is on arrest.[31] Mrs Cheeseman drew analogies with cases relating to inventory searches,particularly the leading case of the Supreme Court in R v Ngan.29 She also referred to26 NOE p 17/14-25.27 See Rebecca Atkins (ed) Adams on Criminal Law – Rights and Powers (looseleaf ed, ThomsonReuters) at [SS11.01].28 See R v Taylor [2009] NZCA 462 at [23] and the now repealed s 37 of the Policing Act 2008.29 R v Ngan [2007] NZSC 105, [2008] 2 NZLR 48.a recent decision of Isac J in Gardner v Police.30 However, inventory searches arepolice searches of property that is being taken into custody when there is no expresspower of search. That is not the case here. There was an express statutory power forMr Cade's bag to be searched because he was being locked up. Mrs Cheeseman reliedon a passage from R v Ngan where the Court said that its decision that inventorysearches were lawful in certain circumstances:31 is not to say that in another situation of this kind, where there is no realbasis for suspecting the presence of property of significant value, the policecan justify the opening of a container of harmless appearance on the entirelyspeculative basis that it may possibly contain cash or valuables.[32] The starting point is that this statement does not apply to the express power tosearch a person under s 11. However, even if it were applicable, a personal bag that adefendant has made a point of retrieving before being taken in custody,32 is in adifferent category to the "container of harmless appearance" being consideredR v Ngan (a sunglasses pouch). If reasonable grounds were required (which they arenot under s 11), then it would clearly be reasonable to believe that a personal bag,described here as a "man bag",33 may contain items of value such as cash, credit cardsor electronic devices.[33] Mrs Cheeseman went on to submit that even if the initial search was lawfullyconducted under s 11, at the point where the police believed methamphetamine hadbeen located, s 21 of the Search and Surveillance Act should have been invoked toallow a warrantless search for drugs. She submitted this was necessary because thatsection requires the police officer to identify themselves and state the search powerbeing exercised. I do not accept this submission. Once the methamphetamine wasfound, searching for and removing it from Mr Cade as an item that could be used toharm himself was clearly well within the terms and purpose of s 11.30 Gardner v Police [2022] NZHC 1258.31 R v Ngan, above n 29, at [29].32 Sergeant Barnham was clearly recalled that Mr Cade retrieved the bag from under the seat, ratherthan a police officer, because it made this made him anxious about what he might be reaching for:NOE p 53. It is hardly surprising that Mr Cade was keen to keep the bag in his possession giventhe amount of cash inside it along with the methamphetamine.33 Reasons for verdict, above n 5, at [99], for example.Ground five — unsupported findings in relation to Mr Cade's knowledge[34] Next, Ms Cheeseman takes issue with Judge Carter's finding that Mr Cademust have been aware of the methamphetamine because of his insistence on retrievingthe bag from the car following his arrest and his subsequent swallowing of it. Thisground of appeal is unsustainable. Mr Cade stated a number of times in evidence thatthe bag was "my bag" but denied knowledge of the methamphetamine.34 It was clearlyopen to the Judge to conclude, despite Mr Cade's assertions, that his acknowledgedpossession of the bag, and actions in relation to it, meant he knew what was inside it.Grounds six and seven — insufficient consideration of medical evidence that Mr Cadehad not consumed methamphetamine and the Judge did not properly consider theimpacts of police disclosure failure[35] It is convenient to deal with grounds six and seven together givendevelopments during oral argument of the appeal.[36] The respondent accepts that material was disclosed late. The question onappeal is whether there is a real risk that the outcome of the trial was affected.35[37] At the hearing, Mrs Cheeseman helpfully explained the essence of thesegrounds of appeal. Mrs Cheeseman provided the documents she considered mostcrucial to advancing Mr Cade's defence. These were a report and statement fromSenior Sergeant Stickle, one of the officers present during the search in the cells.Mrs Cheeseman's complaint focused on not having received full information aboutmedical assessments of Mr Cade due to the concern he had consumed themethamphetamine.[38] Mrs Cheeseman submitted that the late disclosure of this information providedsupport for a theory of the case that the police had sent the wrong bag to ESR foranalysis. That is because if the bag they seized had contained methamphetamine,Mr Cade would have showed signs of methamphetamine consumption. This defencewould have required Mrs Cheeseman to have put to the police officers involved thatthey deliberately, or incompetently, sent the wrong bag for analysis. Mrs Cheeseman34 NOE at pp 90–91, pp 111–112.35 Criminal Procedure Act, s 232.frankly admitted that she did not feel she had sufficient basis to put those allegations,but feels she may have had such a basis if the late disclosure had been provided.[39] There was clear evidence from Sergeant Barnham that the bag that was takenfrom Mr Cade was placed in an evidence locker and the same bag was sent to ESR foranalysis.36 Mrs Cheeseman also accepts that the tracked courier evidence provides nobasis for a suggestion that there was any problem with transit between the policestation and ESR. In the absence of any challenge to the evidence of Sergeant Barnhamin cross-examination, there was no basis at all for a claim that the wrong bag had beensent to ESR.[40] I do not accept that some further information confirming that Mr Cade did notshow typical signs of methamphetamine consumption has caused a real risk that thetrial outcome was affected. There was no real dispute at trial that Mr Cade was notshowing typical signs of methamphetamine consumption. As Mrs Cheeseman pointedout, by the time it came to cross-examining Mr Cade, the police position was that hehad not consumed any of the methamphetamine.37 It is not clear how further evidenceconfirming what was not in dispute would have provided a better foundation toadvance the theory that the wrong bag was sent to ESR.[41] In any event, it is a drawing a very long bow to infer from the fact that Mr Cadewas not showing signs of methamphetamine consumption that the police must havesent the wrong bag to ESR. The police were concerned that Mr Cade may haveconsumed some of the methamphetamine in his attempt to swallow the bag, soughtappropriate medical attention for him in case he did, but were never sure of theposition. It does not follow that the absence of signs of consumption means the baghe tried to swallow did not contain methamphetamine.36 NOE p 55.37 Whether or not Mr Cade had consumed the methamphetamine was irrelevant to proof of any ofthe charges. He was charged with possession not consumption.Conclusion on conviction appeal[42] The Judge directed himself on the onus and standard of proof at the outset ofhis decision.38 I accept the respondent's submission that the Judge's credibilityfindings were clearly open to him. This is a quintessential case of the Judge havingthe advantage of seeing and hearing the witnesses. There was no error in the Judgepreferring the evidence of the police officers over Mr Cade's and the reasons he gavedid not reverse the onus of proof. I consider the Judge also complied with hisobligation to give reasons that addressed the substance of the case advanced byMr Cade.39Sentence appeal[43] The essence of the sentence appeal is that a fine of $3,500 against a maximumpenalty of $10,000 is manifestly excessive.[44] There is limited comparable authority. Yip v Police appears to be the mostrelevant case.40 Mr Yip admitted to deliberately trying to evade police by drivingdown a nearby farm road. Asher J upheld a $2,000 fine on appeal on the basis thatMr Yip's actions constituted a "flagrant and prolonged attempt to avoid compliancewith a lawful direction from the police".41[45] I do not accept the submission that it is inappropriate to set a starting point byassessing culpability as a proportion of the maximum penalty in the absence ofrelevant case law. It is an established approach in guideline sentencing cases to setbands based on an assessment of culpability having regard to the maximum penalty.For example, when setting culpability bands for financial penalties under the Healthand Safety at Work Act 2015, the Full High Court assessed the proposed bands as apercentage of the maximum penalty.4238 At [3]-[5].39 Sena v R, above n 13, at [37].40 Yip v Police HC Rotorua CRI-2011-463-58, 1 December 2011.41 At [26].42 Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881 at [41]–[54].[46] I do not consider a starting point fine in this case of 35 per cent of the maximumpenalty to be outside the available range. I also accept the respondent's submissionthat the sentence necessarily incorporated culpability on the other charges. It includedthe sustained loss of traction charge (a maximum penalty of three months'imprisonment or a fine of $4,500), the possession of methamphetamine charge(maximum penalty of six months' imprisonment or a fine not exceeding $1,000 orboth), and the resisting a constable charge (maximum penalty of three months'imprisonment or a $2,000 fine). Having regard to the decision in Yip (including thatthe $2,000 fine in that case was imposed more than a decade ago), the aggravatingfactors of the other charges and the poor driving involved, I consider a fine of $3,500was not manifestly excessive.[47] Finally, Mrs Cheeseman submits the Judge failed to take into account theability of Mr Cade to pay a fine. Judge Carter was told that Mr Cade was able to paya fine (even though he is a beneficiary with children), but Mr Cade did not provideany financial information because it was assumed by Mrs Cheeseman the fine wouldbe lower. Given the evidence the Judge had heard about the $8,800 of cash inMr Cade's possession on arrest, and that it was common for him to have large amountsof cash that he does not pay tax on,43 it is unsurprising the Judge did not reduce thefine for financial incapacity.[48] In any event, as two of the charges were imprisonable, rather than imposing afine, the Judge could have imposed a sentence of community work had issues withability to pay been raised. I would not be prepared to quash the fine withoutsubstituting a sentence of community work given Mr Cade's culpability. In my view,the preferable course is for the fine to remain and for Mr Cade to takes steps in theDistrict Court to have it remitted, or converted to community work, if he can satisfythe District Court this is appropriate.4443 NOE 92/5-10.44 Summary Proceedings Act 1957, ss 88 and 88AE.Conclusion[49] The appeal against conviction and sentence is dismissed.___________________La Hood JSolicitors/Counsel:H M S Cheeseman, Barrister, AucklandCrown Solicitor, Palmerston North