DUNCAN v R [2018] NZCA 108

DUNCAN v R [2018] NZCA 108 [20 April 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA378/2017[2018] NZCA 108BETWEEN ANDREW DUNCANAppellantAND THE QUEENRespondentHearing: 8 March 2018Court: Clifford, Simon France and Whata JJCounsel: E A Hall and J R Spelman for AppellantP D Marshall for RespondentJudgment: 20 April 2018 at 4 pmJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Whata J)[1] Mr Duncan was found guilty of possession of a Class A controlled drug,methamphetamine, for supply. He was sentenced to three and a half years'imprisonment.1 This is an appeal against conviction and sentence. In relation to theconviction, the two main grounds are:1 R v Duncan [2017] NZDC 13620.(a) the Judge failed to properly direct the jury regarding the elements of theoffence that they needed to be satisfied of to establish whether thepossession was "for supply"; and(b) the Crown should not have invited the jury to conclude that Mr Martin'sevidence should be disregarded when they did not put critical criticismsto Mr Martin for comment.[2] In relation to sentence, it is submitted:(a) the Judge erred in failing to adequately consider the impact of the purityissue on the available starting point; and(b) the uplift for previous convictions and offending while on releaseconditions was too high, and there should have been a discount formitigating factors.Background[3] The background can be stated shortly. Mr Duncan was driving home whenintercepted by police. A search of his vehicle located a grey bag which contained$3,000 in cash and two black boxes. Inside one of the black boxes was an electronicset of scales, a spoon, some broken glass and two plastic zip-lock bags containingcrystals. In the second black box, the police located 12 empty "point bags", 13 smallplastic zip-lock bags and two glass pipes. Mr Duncan's DNA was found on the scalesand his phone was found next to the bag. It is not disputed that methamphetamine wasfound in the form of crystals, with a combined weight of nine grams.[4] Mr Duncan was found guilty and sentenced to three and half years'imprisonment, comprising a start point of three years and three months, an uplift ofnine months for recent prior offending and offending while on release conditions, anda discount of six months for time spent on EM bail. No discount was applied forpersonal factors. The Judge acknowledged Mr Duncan had started to do some goodthings upon his release from prison, but noted at the same time he was reverting backto serious drug offending.The defence case[5] The defence case was that methamphetamine that had been found in the bagbelonged to Mr Duncan's associate, Mr Martin, and that Mr Duncan had no knowledgeof it being in the van. Mr Martin gave evidence the bag was his, that he had borrowedMr Duncan's van and left the bag in there. Mr Duncan explained the presence of hisDNA on the scales on the basis that he had sold the scales to Mr Martin. There wasalso evidence showing that Mr Duncan was in the business of selling, among otherthings, digital scales. It was conceded that possession "for supply" was not in issue.The first ground[6] Ms Hall, for Mr Duncan, submits that the Court was obliged to leave with thejury the issue of whether the methamphetamine was in possession "for supply". Sherefers to R v Keremete,2 together with Christian v R.3 In the former case, this Courtobserved:[12] We agree that a trial Judge is under a duty to direct a jury to considerall issues which are reasonably open to the jury on the evidence. That remainsthe case even where defence counsel has elected not to address on the issue inquestion. If there is a sufficient evidential foundation for a potential defence,and there is no relevant concession, the Judge must leave it to the jury toresolve: R v Tavete [1988] 1 NZLR 428 (CA).[7] The Crown responds, persuasively in our view, that possession for supply waseffectively admitted by the defence. In the defence opening address, the sole issue leftwith the jury to determine was whether the defendant knew about themethamphetamine. The prosecutor and defence closed on the same basis. The Crownnotes, without demure from Ms Hall, that prior to finalising the question trail,the Court then questioned counsel about whether possession for supply needed to beproven and counsel conceded that it did not. The Judge then summed up on that basis.This distinguishes the case from Christian, where the trial Judge adopted the "noissue" approach, despite a request by counsel that the summing-up include a directionon reasonable belief in consent.4 Here, possession "for supply" was not, as a matterof fact, a live issue to be left with the jury.2 R v Keremete CA247/03, 23 October 2003.3 Christian v R [2017] NZSC 145 at [34]–[36].4 At [17].[8] Even if we are wrong about this, we are satisfied there is no scope for the juryto be in doubt as to the issue of supply, being the threshold test for miscarriage adoptedby the majority in Christian.5 The evidence now said to support the proposition themethamphetamine was not for supply is the evidence of Mr Martin who claimed themethamphetamine was his and was for his personal use. Plainly, the jury rejected hisevidence when finding Mr Duncan was, in fact, in possession of it. In so doing, it isclear his evidence about his use of the methamphetamine could have had no materialeffect on the outcome.[9] For completeness, we address an ancillary point made in argument about theJudge telling the jury that the police needed to get court permission to searchMr Duncan's home. This is said to have been prejudicial to Mr Duncan. The Judgein fact said:[14] Now, you also heard evidence that the stopping of the car and thesearch of Mr Duncan's house was pursuant to a search warrant. Now, to obtainsuch a warrant, the police would have had to satisfy a Court there was reasonto believe that executing a warrant would turn up evidence of drug offending.Well, we do not know what the police asserted in their application, but we doknow that at least to an important extent, it turned out it was not correct,because nothing at all of interest was found in his house. You must notspeculate about, or be suspicious about, what may have led the police to apply,and the Court to grant, that search warrant application. The issue, the onlyissue you need to decide is whether or not you are sure on the evidence placedbefore you that Mr Duncan was in possession of the methamphetamine foundin the car that he was driving on 4 March 2016.[10] Rather than prejudicing Mr Duncan, the Judge quite properly directed the jurynot to speculate about the basis for the search.The second ground[11] The second ground of the appeal relates to the discussion of Mr Martin'sevidence during the Crown closing. As noted, Mr Martin gave evidence that he hadborrowed Mr Duncan's van and had left the grey bag containing methamphetamine inthe van when he returned it to Mr Duncan. He listed items that were in the bag andexplained that the scales belonged to him but had been purchased from Mr Duncan.5 At [37].His evidence was therefore crucial to the defence case that the bag did not belong toMr Duncan.[12] Ms Hall submits, in short, that the Crown closed to the jury on the basis thatMr Martin did not mention the $3,000 cash found in the bag when asked about itscontents. The Crown put it to the jury that this was indicative of Mr Martin not beingin possession of the bag. Ms Hall submits that, as Mr Martin was not cross-examinedon this point, it should not have been left with the jury.[13] The Crown in fact invited the jury to disregard Mr Martin's evidence for fourreasons, including:(a) he told the Court that he had lied both when he told Mr Duncan thereason he wanted to borrow the bag and when he asked his friend to gethis godfather's phone number;(b) he said he was not close to Mr Duncan until confronted with evidenceof regular text messages between them;(c) text messages between him and a Mr Brown show they were trying toget their stories straight; and(d) he never mentioned the cash in the bag.[14] We accept, ideally, Mr Martin would have been directly cross-examined on hisknowledge of the $3,000. But when he gave evidence-in-chief he forgot about thebag. He was then asked in cross-examination about the contents of the bag. Hementioned the methamphetamine worth about $5,000 and paraphernalia but omittedthe $3,000 cash. He was also cross-examined on his forgetfulness about the bag. Heexplained he was not forgetful. He said he was scared because Mr Duncan was"fucked off with us being so drunk". He was pressed on this and reminded that he hadsaid he forgot about it three or four times. He was also questioned again on thecontents and he maintained he knew what was in it. It was therefore plainly availableto the Crown to comment in closing on the implausibility of Mr Martin simplyforgetting about a bag which contained $5,000 of methamphetamine and $3,000 cash.Furthermore, we doubt whether cross-examining Mr Martin about his omission tomention the $3,000 would have advanced the defence case. It was highly unlikely tohave bolstered his clearly damaged credibility.[15] In any event, the Crown case was compelling. The omission to cross-examineon this point does not raise any real scope for doubt. The prosecutor put it aptly inclosing:Believing that is not [Mr Duncan's] methamphetamine involves believing thatthe one time Mr Martin borrowed the defendant's car he forgot his bagcontaining $9000 worth of methamphetamine and $3000 worth of cash; heeven just forgot there was $3000 in there; when the defendant gets into thevan the next day his phone unfortunately falls down behind the grey bag,which despite being just beside the driver's seat he does not notice or lookinside; of all the sets of scales that he supposedly sold as part of his e-cigarettebusiness it was a set of scales that he had touched that was in the car and itwas that set of scales that had been used to deal methamphetamine and whichof course was found with the methamphetamine.Sentence appeal[16] The primary issue on the sentencing appeal is this: was it available to thesentencing Judge to apply an orthodox R v Fatu band two assessment when the purityof the methamphetamine had not been considered?6 Ms Hall submitted that the Fatubands apply by reference to what the market would regard as P — that is, the form ofthe drug in which the purity exceeds 60 per cent.7 But, as the purity of themethamphetamine was never tested, it could not be assumed, Ms Hall submits, itexceeded the 60 per cent threshold. Accordingly, she submits, the Judge was wrongto dismiss the significance of absence of evidence of purity.[17] This point is not without merit. Section 24(2)(c) of the Sentencing Act 2002states, the prosecutor must prove beyond reasonable doubt the existence of anydisputed aggravating fact and must negate beyond reasonable doubt any disputedmitigating fact raised by the defence that is not wholly implausible or manifestly false.Mr Duncan invited the Crown to assess the purity of the methamphetamine prior tosentencing, while it could still do so. This was not done. Given that purity is a relevant6 R v Fatu [2006] 2 NZLR 72 (CA) at [34].7 At [30].factor per Fatu and bearing in mind that the Crown carries the burden of proving theseverity of the offending, including by reference to purity, there is much to be said forthe proposition that the Crown should have had the methamphetamine assessed.[18] However, in our view, Fatu is not authority for the proposition that the purityof the methamphetamine must be proven beyond reasonable doubt by testing in everycase. On the contrary, William Young and Chambers JJ stated in Fatu:8In practice, the purity of methamphetamine which is sold as "P" is usually inthe range of 70 per cent – 80 per cent and almost always over 60 per cent.(Emphasis added.)[19] The sentencing bands are then premised on the basis the methamphetamine iswhat the market would regard as P; that is a form of the drug in which the purity is inthe order of, or exceeds 60 per cent. The Court suggested a dispute about purity shouldbe signalled prior to sentencing and the issue can be determined by the Court,"presumably after analysis of the drug".9 As noted, a dispute was signalled, but notacted upon.[20] A curious feature of this case, however, is that Mr Duncan denied possessionand offered no direct evidence about purity at trial, in sentencing or on this appeal.The only evidence that might cast doubt on the purity of the methamphetamine isMr Martin's evidence that the methamphetamine was for his personal use and valuedat $5,000. But his evidence was rejected by the jury. There was and is therefore nocogent evidential basis upon which to doubt that the methamphetamine was P, asdescribed in Fatu. On the contrary, the evidence, including the presence of scales,point bags and $3,000 in cash, strongly supports the conclusion that themethamphetamine was market grade quality P, that is, above 60 per cent.[21] Assuming, however, Mr Martin is to be believed on the value of themethamphetamine, based on the uncontested evidence of Detective Sergeant Rankin,a value of $5,000 translates to about $555 per gram, well within the usual market price8 At [28].9 At [30].for methamphetamine and about $200 below the common price of $750 per gram.10This supports the conclusion that, while not top quality, the methamphetamine was,nevertheless, market grade P.[22] Ms Hall also points to Mr Duncan's previous conviction. The analysis of themethamphetamine for that offending revealed a purity of 32 per cent. This is said tosuggest the present P was likely to be a lower grade quality than the market wouldordinarily expect. But this can hardly be said to be cogent evidence — presumably ofa propensity kind — about the purity of the methamphetamine in this case. Put simply,Mr Duncan cannot seriously rely on his previous market practice to raise an evidentialissue as to the purity of methamphetamine found in a bag, he says, was never in hispossession.[23] The Crown submits that, even if the lower calculation is adopted, say32 per cent, a starting point of three years and three months was not out of range, basedon the assumption that at 32 per cent purity the quantum reduces to 4.8 grams.11 Ifthis calculation is correct, the offending sits at the top of band one of Fatu, which hasan upper limit of four years' imprisonment. We agree this would mean that the startingpoint remained within range. But there is no evidence supporting this linearcalculation. Rather, we prefer, like the Judge, to evaluate the available evidence todetermine whether the methamphetamine was market grade P and if so, apply Fatu inthe usual way. There being cogent evidence the methamphetamine was market gradequality P, we see no real scope for doubt about the market grade purity of themethamphetamine.[24] The second aspect of the sentence appeal is Ms Hall's submissions that theuplift of nine months, or 23 per cent, for prior offending was too high and thatMr Duncan's efforts to re-enter the community after his release from his 2011offending should have warranted a discount.10 Sergeant Rankin stated a gram of methamphetamine will sell for between $350 and $1200 witharound $750 being common.11 That is (32/60) x 9 grams = 4.8 grams.[25] In August 2013, Mr Duncan was sentenced to three years' imprisonment forpossessing methamphetamine for supply, together with other drug-related offending.He was still on release conditions when the present offending occurred in March 2016.Plainly, his prison sentence had little, if any, deterrent effect. Uplifts of 20 to23 per cent have been confirmed by this Court to defendants who were on parole forprevious similar offending.12 Therefore, while high, the present uplift was not out ofrange.[26] Finally, we do not accept that a discount was warranted for Mr Duncan'sattempts to start afresh. He may have started afresh, but it did not last long. Hereoffended while on release conditions. It was open to the Judge to find that the effortsMr Duncan had made to reintegrate himself in the community were cancelled out bythe fact that he had reverted to serious drug offending.[27] The appeal against conviction and sentence is therefore dismissed.Solicitors:Crown Law Office, Wellington for Respondent12 Lavea v R [2014] NZCA 192 at [24]; Waterworth v R [2012] NZCA 58 at [43]–[45]; Vernon v R[2010] NZCA 308 at [14]–[16].