CLAUSEN v R [2021] NZCA 396

CLAUSEN v R [2021] NZCA 396 [23 August 2021]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA735/2020[2021] NZCA 396BETWEEN CONNOR CLAUSENAppellantAND THE QUEENRespondentHearing: 27 July 2021Court: Goddard, Thomas and Wylie JJCounsel: S J Lance for AppellantZ A Fuhr for RespondentJudgment: 23 August 2021 at 4.00 pmJUDGMENT OF THE COURTThe appeals against conviction and sentence are dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] The appellant, Connor Clausen, was charged with conspiring to supply theClass B controlled drug, pseudoephedrine. His co-conspirators were said to bePasilika Naufahu, Samuel Vaisevuraki, He Sha and other unnamed persons. Followinga jury trial before Lang J in the High Court at Auckland in September 2020,Mr Clausen was found guilty of the conspiracy.[2] Mr Clausen had earlier pleaded guilty to two other charges — unlawfulpossession of a pistol and unlawful possession of firearms and ammunition(a representative charge). On 9 December 2020, Lang J sentenced him to two yearsand four months' imprisonment for the conspiracy offending, together witha cumulative sentence of one year and four months' imprisonment for the firearmscharges (in total three years and eight months' imprisonment).1[3] In the course of the conspiracy trial, the Judge ruled that interceptedcommunications between Mr Vaisevuraki and Mr Sha were admissible againstMr Clausen pursuant to s 22A of the Evidence Act 2006 (the Act).2[4] Mr Clausen appeals this ruling. He asserts that the Judge erred because therequirements set out in s 22A were not met. He also says that the interceptedcommunications and a police surveillance video were the only direct evidence againsthim and that, even if the intercepted communications were admissible, the jury'sverdict was unreasonable. In the event the conviction appeal is unsuccessful,Mr Clausen appeals the sentence imposed. He argues that the Judge erred by adoptinga starting point that was too high and that, as a result, the sentence was manifestlyexcessive.Factual background[5] In 2018, the police commenced an investigation into a criminal enterprise theybelieved was engaged in the importation and supply of controlled drugs and associatedmoney laundering. The suspected criminal enterprise involved persons associatedwith the Comanchero outlaw motorcycle gang.[6] The Crown case against Mr Clausen was that he was a party to a conspiracywhereby he and Mr Vaisevuraki were to act as the intermediaries or agents ofMr Naufahu, who is the president of the Comanchero gang in New Zealand.The Crown alleged that Mr Clausen was to pay for and take possession of a significant1 R v Clausen [2020] NZHC 3257 [Sentencing notes].2 R v Naufahu HC Auckland CRI-2019-404-3382, 24 September 2020 [Admissibility decision].quantity of pseudoephedrine from persons associated with Mr Sha, who was acting onbehalf of the supplier and vendor of the pseudoephedrine.[7] On the evening of 18 September 2018, Mr Vaisevuraki arrived in Aucklandfrom Sydney. Mr Sha had earlier travelled to Auckland, also from Sydney; he hadarrived on 15 September 2018.[8] On the morning of 19 September 2018, Mr Vaisevuraki met with Mr Naufahu.He then met with Mr Sha in the afternoon. Mr Vaisevuraki and Mr Sha spent theremainder of the day driving around Auckland, making arrangements for the drugtransaction to take place on the following day.[9] The police had installed an audio intercept device in Mr Vaisevuraki's vehicle.They also had the vehicle under visual surveillance at all material times.[10] On the afternoon of 20 September 2018, the police observed Mr Vaisevurakiand Mr Sha driving around South Auckland in Mr Vaisevuraki's vehicle. The vehicleeventually parked on the side of a road in Takanini. Mr Vaisevuraki and Mr Sha hadearlier discussed a transaction involving pseudoephedrine worth $1 million.Their exchanges indicated that they were waiting for Mr Sha's associates to bring thepseudoephedrine to the place where they were parked. Mr Vaisevuraki was waitingfor a courier to bring the cash to the same place. The plan was that the person whobrought the cash would hand it over to Mr Sha, that Mr Sha would check it, that Mr Shaor one his associates would put the pseudoephedrine in the boot of the car whicharrived with the cash, and that the purchaser through his agent would then takepossession of it.[11] While Mr Vaisevuraki and Mr Sha were sitting in Mr Vaisevuraki's vehicletogether, both men used their cellphones to contact their respective principals inrelation to the anticipated deal.[12] At 3.20 pm, Mr Vaisevuraki told Mr Sha that the courier with the cash wouldbe arriving no later than 3.45 pm, and that the pseudoephedrine needed to be availableat the same place at that time.[13] At 3.53 pm, a Volkswagen Golf pulled in and parked directly in front ofMr Vaisevuraki's vehicle. Mr Clausen was sitting in the passenger's seat of the Golf.Mr Sha got out of Mr Vaisevuraki's vehicle and walked towards the Golf. He openedthe rear passenger door. Mr Clausen got out of the front passenger's seat, spoke toMr Sha, and then opened the boot of the Golf. Mr Vaisevuraki then called out toMr Sha, telling him that he should get into the Golf to check the cash, that he shouldcall "the runner to come" and then wait in the Golf. Mr Sha did not however get intothe Golf. It seems that he thought that Mr Clausen did not want to let him in.Mr Clausen then walked back to Mr Vaisevuraki's vehicle and spoke toMr Vaisevuraki. In the course of their exchange, they referred to a third party knownto both of them, who it seems was also involved in the transaction.[14] The audio intercept device that the police had concealed in Mr Vaisevuraki'svehicle captured the following:VAISEVURAKI: Oh bro this is stupid. I've already said you're gonnasit in the car and check the money.SHA: Yes, I know. I am waiting you know. But I just gotthe message. (Pause). Just uh tell me going. (Pause)VAISEVURAKI: We, we, we, go, go.SHA: They are coming?VAISEVURAKI: Year, it's at Dox.SHA: Doc?VAISEVURAKI: It's Dox.SHA: Mm.VAISEVURAKI: It's Dox.SHA: (In English). We are VAISEVURAKI: Mm.SHA: going?VAISEVURAKI: Go. Just go check. You go check.SHA: This.VAISEVURAKI: Go. Check.SHA: Now?VAISEVURAKI: Yes go now and check.SHA: But.VAISEVURAKI: Hurry up. Go and check.(Sound of door opening).VAISEVURAKI : Yea, go and check.(Sound of door closing)(SHA heard faintly talking to Connor CLAUSEN inthe distance).VAISEVURAKI: (Speaking to CLAUSEN outside vehicle). Cuz, cuz,he'll wait in there with you. He'll wait in there withyou. Cuz he'll wait in there with you bro. He'll waitin there with you cuz.CLAUSEN: (Speaking from outside vehicle). Gonna wait in herewith us?VAISEVURAKI: No, he will wait in there with you.CLAUSEN: He's gonna wait in here with us?VAISEVURAKI: He will wait with you.VAISEVURAKI: (Talking to SHA) Get in the car Su'an.CLAUSEN: Bro he's. Somethings been.VAISEVURAKI: No, no. I'm talking to your bro now. I talking to himnow.CLAUSEN: Uh?VAISEVURAKI: I'm taking to him now cuz.CLAUSEN: Oh right now?VAISEVURAKI: I'm talking to your bro now.(Pause)VAISEVURAKI: (Talking to SHA) Bro jump in and verify.(Sound of handbrake applied / Vehicle door opening)VAISEVURAKI: (Talking to SHA). Su'an. Su'an. Hop in the car, lookat it, verify it, call the runner to come. And hurry up,hurry up. Hurry up Su'an.(Sound of vehicle door closing)VAISEVURAKI: (Shouts) Su'an listen to my instructions.SHA: ..VAISEVURAKI: Yes I'm staying here relax man. (Pause) Okay hopin.(Sound of vehicle door opening/closing).SHA: He does not want I go in the car.VAISEVURAKI: Yeah okay we'll wait.SHA: May I make phone call? .VAISEVURAKI: Yeah tell him to come, they're ready bro.SHA: Yeah, I know.VAISEVURAKI: Say come, you've seen the money, it's ready.(Pause)VAISEVURAKI: (Talking to CLAUSEN) Cuz just close the boot.(Pause)SHA: (On the phone in Mandarin) Hello, ah.SAMUEL: (Cuts in) Just close the boot for a sec.SHA: (On the phone in Mandarin). Hello. Ah, the person /people have arrived. You get him / her to bring it overthen. (Pause) They, they have already arrived. Youget him / her to come over please.(Sound of motorbike driving off)SHA: (On the phone in Mandarin) . The people that arebringing / taking the money have arrived. And theywant to look at it now. Where's your person who isbring the stuff (Pause) He / She is not coming over?Fuck, so now, (pause) What does that mean, he / sheis not coming over? They have arrived. They arewaiting for the stuff.(Pause)SHA: (On the phone in Mandarin). No, if they don't see theperson, then they won't wont do it and have left,fuck.(Pause)SHA: (On the phone in Mandarin). Have left.[15] Towards the end of this conversation, Mr Clausen got back into the frontpassenger's seat of the Volkswagen Golf. The Golf was driven off just before 3.57 pm.Mr Sha and Mr Vaisevuraki left the scene shortly thereafter.[16] Mr Vaisevuraki met with Mr Naufahu the following morning. Mr Vaisevurakialso left voice messages for an associate where he explained how the pseudoephedrinedeal might still be able to be transacted.[17] Mr Clausen was arrested on 11 April 2019. When he was interviewed he wasshown a photograph of himself on the side of the road on 20 September 2018.He acknowledged that the photograph "possibly" showed him, but claimed not to havebeen involved in the aborted transaction or to have known any of the other peopleinvolved.[18] As already noted, Mr Clausen was tried in September 2020 together withMr Naufahu and a number of others who were not parties to the alleged conspiracy,but who faced other related charges. By the time of trial, Mr Sha had pleaded and hadbeen sentenced for his part in the conspiracy.3 Mr Vaisevuraki had been chargedtogether with a number of other defendants but their charges had been severed andwere to proceed by way of a separate trial. It was originally intended thatMr Vaisevuraki would give evidence at Mr Clausen's and Mr Naufahu's trial. He wasissued with a summons. He made it clear that he had no intention of giving evidenceand he filed an application for judicial review of the Crown's decision to call him asa witness, highlighting his rights against self-incrimination. In the event, the Crownresolved not to call him.[19] During the course of Mr Clausen's trial, the Crown sought to adduce thecommunications that had been intercepted between Mr Vaisevuraki and Mr Sha on20 September 2018 while they were together in Mr Sha's vehicle on the side of theroad in Takanini.3 R v Sha [2020] NZDC 10398.The conviction appealHigh Court admissibility decision[20] The Judge noted that the Crown was relying on the events that occurred duringthe afternoon of 20 September 2018 to prove the charge against Mr Clausen and thatthe case against him depended on the admissibility of the interceptedcommunications.4[21] The Judge referred to s 22A of the Evidence Act, noting that it codifies thecommon law principles relating to the admissibility of hearsay evidence wherea defendant is alleged to have been a party to a conspiracy to commit an unlawful act.There was no dispute regarding the applicable principles — the Crown had to establishthat there was reasonable evidence that there was a conspiracy or joint enterprise andthat it involved Mr Clausen. Reasonable evidence is evidence that would not besufficient of itself to establish guilt, but is of such a nature that the trial Judge considersit safe to admit the evidence of a co-conspirator or co-conspirators.[22] There was no dispute that the communications between Mr Vaisevuraki andMr Sha established that they were parties to an arrangement under which personsassociated with Mr Sha were to sell pseudoephedrine to persons associated withMr Vaisevuraki. The issue in dispute was whether Mr Clausen was a party to thisarrangement.5[23] The Crown had highlighted four factors which it argued supported its case —that Mr Sha had been convicted on a charge of conspiring to supply Mr Vaisevurakiwith pseudoephedrine, that Mr Clausen had approached Mr Sha and Mr Vaisevurakishortly before the aborted supply was due to take place, the nature of the discussionsbetween Mr Clausen and Mr Vaisevuraki at that point, and the fact that Mr Clausensubsequently lied about his involvement in the events that occurred on 20 September2018.4 Admissibility decision, above n 2, at [2].5 At [6].[24] The Judge put Mr Sha's conviction and the fact that Mr Clausen may havesubsequently lied to one side. He did not consider that either of these factors assistedthe Crown to any material degree. In his view, the decisive factor was the manner inwhich Mr Clausen became involved in the events that occurred on the afternoon of20 September 2018. The intercepted communications revealed that Mr Sha andMr Vaisevuraki expected that a member of Mr Sha's group would bringpseudoephedrine to the scene, and that a member of Mr Vaisevuraki's group wouldbring cash to the same place to pay for the pseudoephedrine. The Judge noted that thediscussions as to how the transaction was to take place extended over a considerableperiod; Mr Sha used his cellphone on several occasions to seek instructions fromothers in his group as to what was to occur and to ascertain what was happening; andMr Vaisevuraki told Mr Sha that the person with the cash would be arriving no laterthan 3.45 pm and that the pseudoephedrine also needed to be there by that time. Therewere then discussions about whether Mr Sha would be permitted to view and/or countthe cash before releasing the pseudoephedrine to Mr Vaisevuraki's associates. It wasultimately agreed that Mr Sha would have the opportunity to view the cash but notcount it before the transaction took place.[25] The Judge noted that Mr Clausen arrived at 3.50 pm. He referred to theintercepted communications and recorded his view that the conversation establishedthat Mr Clausen had arrived at the scene not by chance but by pre-arrangement.The Judge considered that Mr Clausen's comments also indicated that he was awareof the plan and that he was seeking clarification as to where Mr Sha was to view thecash.6[26] The Judge was satisfied that this evidence provided a reasonable reassurancethat Mr Clausen was a member of a conspiracy involving Mr Sha and Mr Vaisevuraki.Accordingly, he ruled that the conversations between Mr Sha and Mr Vaisevuraki wereadmissible against Mr Clausen under s 22A of the Act.6 At [9]–[14].The appeal[27] The appeal against conviction is brought pursuant to s 229 of theCriminal Procedure Act 2011. This Court, as the first appeal Court, must allow theappeal if it is satisfied that having regard to the evidence, the jury's verdict wasunreasonable or that a miscarriage of justice has occurred for any reason. In any othercase, the Court must dismiss the appeal. A miscarriage of justice is an error,irregularity or occurrence in or in relation to or affecting the trial that has created a realrisk that the outcome of the trial was affected or has resulted in an unfair trial or a trialthat was a nullity.7Submissions[28] Mr Lance, on behalf of Mr Clausen, submitted that the interceptedcommunications were not admissible. He argued that there is nothing to suggest thatMr Clausen had any knowledge of, or had previously met with, any of the allegedco-conspirators prior to the meeting on 20 September 2019 or that he had beeninvolved in drug dealing generally. Mr Lance accepted that Mr Clausen must havebeen at the side of the road meeting by design rather than by chance, but submittedthat Mr Clausen's comments during the intercepted conversations were consistent withhim not knowing of the plan to exchange cash for pseudoephedrine. The Judge erredin determining that there was reasonable evidence that showed that Mr Clausen wasinvolved in any conspiracy. He further submitted that the jury's verdict was based onspeculation and/or prejudice against Mr Clausen, because the surveillance video andthe intercepted communications did not provide sufficient evidence on whichMr Clausen could be found guilty. Apart from a photograph showing that Mr Clausenhad a broad association with others in or associated with the Comanchero gang, therewas no evidence that he knew Mr Naufahu, Mr Sha or Mr Vaisevuraki.[29] Ms Fuhr, for the Crown, submitted that the Judge did not err in finding theintercepted communications admissible. There could be no real doubt that there wasa conspiracy to purchase and supply pseudoephedrine, given Mr Vaisevuraki's andMr Sha's clear comments to that effect. She noted Mr Sha's conviction for conspiring7 Criminal Procedure Act 2011, s 232.to sell the drug to Mr Vaisevuraki and others, and the fact that Mr Vaisevuraki hadsuggested that others were involved in the conspiracy. The Judge was right to besatisfied that Mr Clausen was a member of the conspiracy and that there was a plan ofwhich he was aware to collect something and deliver that something to the person whogave him the cash to pay for it, even if he was unaware of the minor details of orchanges to the plan. Ms Fuhr argued that Mr Clausen was a knowing participant.Further, drawing the different evidential strands together, the jury's verdict was notunreasonable.Section 22A analysis[30] A hearsay statement is a statement made by a person other than a witness thatis offered in evidence at a proceeding to prove the truth of its contents.8 Generally,hearsay evidence is not admissible.9 However, there are various exceptions to thisrule.[31] Relevantly, s 22A codifies the common law co-conspirators' exception to thegeneral rule that hearsay statements are inadmissible. It provides as follows:22A Admissibility of hearsay statement against defendantIn a criminal proceeding, a hearsay statement is admissible againsta defendant if—(a) there is reasonable evidence of a conspiracy or jointenterprise; and(b) there is reasonable evidence that the defendant was a memberof the conspiracy or joint enterprise; and(c) the hearsay statement was made in furtherance of theconspiracy or joint enterprise.[32] This appeal concerns turns on s 22A(a) and (b). Both use the term "reasonableevidence". As the Judge noted, this phrase denotes evidence which of itself would notsustain a verdict of guilt but which is of such a nature that the Court considers it safe8 Evidence Act 2006, s 4(1).9 Section 17.to admit the evidence of a co-conspirator.10 It is not a stringent standard, and thethreshold is lower than the balance of probabilities.11[33] When considering s 22A(a), there need only be reasonable evidence of theessential ambit of the conspiracy or joint enterprise; the Crown is not obliged to provethat there is reasonable evidence of every last detail.12 The Crown must show that theconspiracy or joint enterprise is of the kind alleged and in general terms what theconspirators, including the defendant, had a common intention of achieving.The reasonable evidence must encompass the offending charged and include asmembers the makers of the hearsay statements it is sought to admit.13[34] In our view, the Judge did not err when he found that there could be no realdoubt that there was a conspiracy to purchase and supply pseudoephedrine.Mr Vaisevuraki talked openly to Mr Sha about this while they were in the vehicletogether. They discussed in unequivocal terms the sale and purchase of $1 millionworth of pseudoephedrine. It was clear from their conversations that Mr Sha wasacting for the supplier and that Mr Vaisevuraki was acting for the purchaser. They didnot use coded language – no doubt because they thought that their conversations in thevehicle were secure. There were frequent references to the supply of "pseudo".Mr Vaisevuraki discussed the involvement of others in the conspiracy, referring to his"partner" who "wants to do the deal". He suggested that the transaction involved"the biggest gang in New Zealand".[35] It is also relevant that Mr Sha pleaded guilty to a conspiracy "with personsunknown to sell the Class B drug to [Mr] Vaisevuraki" and others between15 September 2018 and 21 September 2018. Mr Clausen was not named in the chargeto which Mr Sha pleaded and the Judge discounted this factor. It has been observedthat a co-defendant's conviction on its own can provide evidence of the existence ofthe conspiracy.14 While not decisive, in our view, the conviction does assist. It addsto the reasonable evidence required to meet the low statutory threshold.10 See R v Messenger [2008] NZCA 13, [2011] 3 NZLR 779 at [12].11 Kayrouz v R [2014] NZCA 139 at [22], citing Qiu v R [2007] 2 NZLR 433 (CA).12 R v Messenger, above n 10, at [14] and [19].13 Qiu v R, above n 11, at [24].14 See C (CA388/2020) v R [2020] NZCA 670 at [23]–[24]; and R v Keil [2017] NZHC 2221 at [10].[36] We turn now to the second element – reasonable evidence that Mr Clausen wasa member of the conspiracy or joint enterprise. As the Judge noted, this limb cannotbe proven by reference to statements made in a defendant's absence.15 It requiresevidence independent of the hearsay statements to show:(a) at least the essential matters constituting the conspiracy; and(b) on the facts known to the defendant, that the conspiracy was unlawful.It is not however necessary for a defendant to know the identities of all the parties ofa conspiracy or joint enterprise.16[37] In our view, the Judge did not err when he found that the second limb wassatisfied. Mr Lance, in his submissions, properly accepted that Mr Clausen was onthe side of the road by design. This was self-evident. Further, the interceptedcommunications made it clear that Mr Vaisevuraki was expecting that the personbringing the cash on behalf of the purchaser would arrive at 3.45 pm. Mr Clausen'sarrival, albeit a few minutes late, the fact that the vehicle in which Mr Clausen wastravelling parked directly in front of Mr Vaisevuraki's vehicle, and Mr Clausen'ssubsequent discussions with Mr Vaisevuraki provide reasonable evidence thatMr Clausen and Mr Vaisevuraki were expecting to see one another. They spoke aboutanother individual and neither needed to clarify to the other who they were talkingabout. Their discussions suggest that both of them, and Mr Sha, were operating on thebasis of a pre-existing plan and that all that Mr Clausen required was clarification ofminor details — whether Mr Sha was to view and verify the cash inside theVolkswagen Golf and where Mr Sha was going to wait until the drugs arrived.[38] Mr Lance submitted that Mr Clausen's question — "Gonna wait in here withus?" — was consistent with him having no knowledge of the plan. In our view, thatMr Clausen required further instructions or clarification as to what to do, or that heneeded to be updated on changes to or the detail of the plan, does not mean that helacked awareness of the overall plan. His awareness of the overall plan and his15 Admissibility decision, above n 2, at [5].16 R v Messenger, above n 10, at [19].intention to perform his role in the transaction is demonstrated by his arrival at thescene at about the time expected and by the fact that he got out of the car and openedthe boot, as had been discussed between Mr Vaisevuraki and Mr Sha. It is alsodemonstrated by his discussions with Mr Vaisevuraki.[39] Mr Lance argued that there was no direct evidence that Mr Clausen knew thathe was to collect pseudoephedrine. However, such level of specificity is not requiredto satisfy the second limb of s 22A. As this Court has noted, it is important not toconfuse the question of proof of specific charges with the threshold test foradmissibility.17[40] We are satisfied that the various limbs of s 22A were met and that theintercepted communications were admissible against Mr Clausen.Was the verdict unreasonable?[41] The approach to such appeals was discussed by the Supreme Court inR v Owen.18 A verdict will be unreasonable if, having regard to all the evidence, thejury could not reasonably have been satisfied to the required standard that thedefendant was guilty.19 The Court endorsed the following principles from this Court'sdecision in R v Munro:20(a) The appellate court is performing a review function, not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and credibility of the witness is a classicexample.(c) The weight to be given to individual pieces of evidence is essentiallya jury function.17 At [25]. See also R v Smart [2002] EWCA Crim 772 at [34].18 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37.19 At [17].20 At [13], citing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.(d) Reasonable minds may disagree on matters of fact.(e) The jury is charged with finding the facts, meaning appellate courtsshould not lightly intervene in this area.(f) The appellate court is not conducting a retrial on the written record.An appellant must articulate clearly and precisely in what respect orrespects the verdict is said to be unreasonable and why.[42] In the present case, Mr Clausen submits that the audio and visual surveillanceevidence from 20 September 2018 was the only direct evidence against him and thatit did not provide sufficient evidence to establish that he was a member of anyconspiracy involving Mr Naufahu, Mr Vaisevuraki, Mr Sha and others.[43] It is noteworthy that Mr Clausen sought a discharge without conviction unders 147 of the Criminal Procedure Act before the trial Judge. He raised the sameargument. His application was unsuccessful.21[44] We are not persuaded that the jury's verdict was unreasonable. We accept thatit is clear from the verdict that the jury took the Crown case at its highest but it wasentitled to do so. There were, in our view, sufficient evidential strands that togetherprovided a basis on which the jury could properly draw the inference that Mr Clausenknew what he was being asked to pay for, pick up and on-deliver.[45] The intercepted communications between Mr Vaisevuraki and Mr Sha in thevehicle before Mr Clausen arrived at the scene made clear the nature of the plannedtransaction. We note the following:(a) At 2.18 pm, Mr Vaisevuraki instructed Mr Sha to relay the followinginstructions to his associate who was bringing the pseudoephedrine tothe scene: tell the guy that's coming with the pseudo he have to drop itin their boot.21 R v Naufahu HC Auckland CRI-2019-404-3382, 1 October 2020.When he come to car, to open the back of the boot, put it in,close the boot, then walk off.No tell him exactly that. Not to put it through the window.Not to put it through the door. To put in fucken boot. The boot.Go to the back of the car. Put it in their boot. Make sure.(b) Mr Sha, in Mr Vaisevuraki's presence, passed these instructions on tohis principal in Mandarin.(c) The conversation between Mr Vaisevuraki and Mr Sha continued.At approximately 2.27 pm, Mr Vaisevuraki said to Mr Sha:VAISEVURAKI: Bro, tell him. Just get the guy tocome and hop in the car. You justneed to take the pseudo. Drop it inthe fucken boot, bring the moneyback, let's go.SHA: Yes. I need just to tell uh tell myguys. Tell him just to bring thepseudo coming. Then you just ahcome, come to with paper, then putthe, uh, the, the, the, the car. Thenyou take paper off we go. That'sChinese how – how.(d) There was then something of a disagreement as to how the transactionshould proceed. At 2.30 pm, Mr Vaisevuraki said to Mr Sha as follows:Just bring it to the car. Bring the pseudo to the car. I will goand do the deal. It will be done perfect. Perfect.(e) Mr Vaisevuraki was in contact with others involved on the purchaser'sside of the transaction. At 2.35 pm, he left a voice message stating:Hey brother. Ah we'll do it your way bro. I've convinced theseguys to ah do it your way.(f) At 2.50 pm, Mr Vaisevuraki informed Mr Sha that his associates were"gonna be in ten minutes ... [t]hey've already messaged".(g) The conversation between Mr Vaisevuraki and Mr Sha continued.At 2.58 pm Mr Vaisevuraki said to Mr Sha:No more silliness. There's more than a million dollarscoming. There's a million dollars coming. They are slowingup at the moment to get here. Because they don't want to arriveuntil the pseudo's here. I need it here.At 3.11 pm:They just want a ETA so they can turn up. They're happy withthe detail. I just need a ETA. I just need a ETA. Please, wejust need a time. That's all we need.At 3.19 pm:We've got exactly til three forty-five. They will be here at threeforty-five. If we're, if we're not ready, they will come, theywill stop, then they will go.At 3.28 pm:Is your mate coming? Cos, my, my, my partner in Sydney saidthat he, the runner should be on his way.And at 3.46 pm:When you go in the car there will be a bag in the front seat.Unzip it. Look at it. Don't count because it will cause. Justclose it. The guys in the car have direct contact with him. Don'tmake them nervous, right?(h) At 3.56 pm Mr Sha made a call to his associate in Mandarin saying:The people that are bringing/taking the money have arrived.And they want to look at it now. Where's your person who isbringing the stuff.[46] The transaction proceeded largely as Mr Vaisevuraki had discussed, withMr Clausen arriving at the scene at 3.53 pm. Mr Clausen opened the boot of the Golfhe was travelling in without any prompting. Mr Clausen's interactions withMr Vaisevuraki at the scene made it clear that they were expecting to see each other.It was a reasonable inference that both were in or had been in contact with the sameindividual. Nor did Mr Clausen appear to be surprised to see Mr Sha at the scene.Rather, his interaction with Mr Sha demonstrated that he was expecting to see him andwas familiar with his role in the transaction. The transaction was aborted, much asMr Vaisevuraki had predicted, when Mr Sha's associates failed to turn up with thepseudoephedrine.[47] There was one other matter which the jury were entitled to take into account— a photograph of Mr Clausen on a boat along with a number of other persons who,the evidence suggested, were members of the Comanchero gang. Mr Clausen iscrouching down. He is holding up his right hand and making a "C" sign. One otherperson in the photograph is making the same sign. Mr Naufahu is shown in thephotograph. As we understand it, the photograph was taken on a vessel chartered tocelebrate Mr Naufahu's birthday.[48] The Judge's directions in relation to circumstantial evidence and inferencewere orthodox. He highlighted that, in order to reach a verdict about Mr Clausen'sinvolvement in the conspiracy, the jury would have to draw inferences. The jury wereexpressly told that they needed to be satisfied that a factual basis had been establishedfor the drawing of the inferences suggested by the Crown and that this could notinvolve any element of guesswork or speculation.[49] The Judge also gave careful directions about the limitations of the hearsayevidence relied on by the Crown. He warned the jury to be careful in relation to theintercepted communications and told them that they were being asked to take intoaccount evidence from persons who had not given evidence at the trial —Mr Vaisevuraki and Mr Sha. The Judge emphasised that the defence had not had theopportunity to challenge Mr Vaisevuraki, to put to him that he had had nothing to dowith Mr Clausen or Mr Naufahu or to demonstrate that his credibility was lessened byreference to other matters which had been referred to at trial.[50] In our view, Mr Clausen has failed to demonstrate that the jury could notreasonably have been satisfied to the required standard that he was guilty of theconspiracy.[51] It follows that the appeal against conviction is dismissed.The sentence appealThe Judge's sentencing notes[52] The Judge recorded the conspiracy charge and the firearms charges and recitedthe facts underlying the offending. He noted that the Crown proposed a starting pointof three to three and a half years' imprisonment for the conspiracy charge, and thatcounsel for Mr Clausen argued that a starting point of around 18 months'imprisonment was appropriate. The Judge considered that the starting point adoptedfor Mr Sha's sentencing was the best guideline. There, a starting point of four years'imprisonment was adopted.22[53] The Judge fixed a starting point of two years and six months' imprisonment toreflect that Mr Clausen's culpability was far less than that of Mr Sha, who was "muchfurther up the chain of command". The Judge characterised Mr Clausen's role as thatof a courier, whose task was to take the money to the scene and then take possessionof the drug. He considered that Mr Clausen was a trusted member of the organisationbecause he was permitted to handle a large sum of money. He accepted thatMr Clausen had no proprietary interest in the drug. He considered it likely thatMr Clausen's role in the transaction had come about because of orders he had receivedfrom Mr Naufahu.23[54] In relation to the firearms charges, the Judge recorded that both counsel agreedthat a cumulative sentence was warranted and that, standing alone, a starting point of12 months' imprisonment would have been appropriate for possession of the pistol.He reduced that starting point to six months to take into account totality principles.He observed that the other firearms charge was more serious because it took placewhile Mr Clausen was on bail and it involved two firearms and live ammunition.The Judge considered that standing alone, a starting point of between two and two anda half years' imprisonment would have been appropriate, but again he reduced this toone year and two months for totality. This resulted in a cumulative sentence ofone year and eight months' imprisonment for the firearms charges.2422 R v Sha, above n 3.23 Sentencing notes, above n 1, at [12]–[15].24 At [17]–[18].[55] Turning to personal factors, the Judge applied an uplift of two months on thefirearms charges to reflect Mr Clausen's previous convictions for violence andfirearms offending.25 An overall discount of four months was allowed to recogniseMr Clausen's guilty pleas to the firearms charges.26 The Judge acknowledged the timethat Mr Clausen had spent on electronically-monitored bail, although noted that he hadultimately absconded. The Judge reduced Mr Clausen's sentence by four months torecognise his rehabilitative efforts while on bail and the fact that his deportation fromAustralia had left him stranded and alone, which had driven him to associate with theComanchero gang to seek a sense of camaraderie.27[56] The end sentence imposed was one of three years and eight months'imprisonment.The appeal[57] The appeal against sentence is brought pursuant to s 244 of theCriminal Procedure Act. This Court, as the first appeal Court, must allow the appealif it is satisfied that, for any reason, there is an error in the sentence imposed onconviction and that a different sentence should be imposed. In any other case, theCourt must dismiss the appeal.28Submissions[58] The appeal focused on the starting point on the conspiracy charge — two anda half years' imprisonment.[59] Mr Lance accepted that the Judge was entitled to take into account the sentenceimposed on Mr Sha. He noted that the Judge accepted that Mr Clausen was in facta courier or runner and that he had no proprietary interest in the drugs. Mr Lance alsopointed out that there was no evidence that Mr Clausen had been paid for what he didor that he had any expectation of a commercial gain. It was argued that, in these25 At [19].26 At [21].27 At [25]–[26].28 Criminal Procedure Act, s 250.circumstances, and applying the principles discussed by this Court in Zhang v R29 inrelation to role, Mr Clausen's starting point was too high. It was submitted that he wasinvolved only for a few minutes, and that a starting point of 18 months to two years'imprisonment in all the circumstances would have been more appropriate to reflect hisvery modest role and lack of commercial interest.[60] Ms Fuhr submitted that the Judge did not err, that the starting point was withinrange, and that appropriate discounts were allowed.Analysis[61] The conspiracy involved the Class B drug pseudoephedrine. The relevant tariffdecision is the judgment of this Court in R v Wallace.30 The Court there recognisedthe three broad sentencing bands for offending involved Class B drugs:31(a) Band one: involving commercial activity on a major scale wherea starting point for a principal offender will be in excess of eight years.(b) Band two: involving commercial manufacture or importation ona substantial scale reflecting sophistication and organisation and callingfor starting point in the range of five to eight years.(c) Band three: appropriate for smaller operations, but representingcommercial dealing, with a starting point of up to five years.[62] The Court has however stressed the need for flexibility when applying theseguidelines to ensure offenders are sentenced both for the nature and size of thetransaction and for their particular role.32[63] In the present case, Mr Clausen was sentenced for a conspiracy rather thansupply and the Crown accepted that this lesser involvement required some downwardadjustment. Ms Fuhr did however point out that the offending progressed beyond29 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [126].30 R v Wallace [1999] 3 NZLR 159 (CA).31 At [30]–[32].32 R v Wang [2014] NZCA 409 at [22].theoretical planning and came close to fruition. The proposed transaction involved$1 million worth of pseudoephedrine and the evidence at trial suggested that between10 and 16.5 kilograms of pseudoephedrine could be purchased for that sum.That amount of pseudoephedrine could have been used to manufacture a very largeamount of methamphetamine. The chain of command and the involvement ofintermediaries indicated that there was a level of sophistication and organisationinvolved. The Crown accepted that Mr Clausen was taking instructions from thosefurther up the chain, but the conviction nevertheless established that he had anoperational role in furthering the conspiracy. The amount of money and the druginvolved point to the fact that he must have been a reasonably trusted member of thepurchasing organisation. The Judge recognised that and, in our view, he did not err indoing so.[64] While the evidence against Mr Clausen spanned only a few minutes, hispresence at the side of the road close to the allotted time means that he must have beeninvolved earlier and that he was privy to at least the arrangements which had been putin place for the sale and purchase of the drug. He must have had some awareness ofthe scale of the operation given the large amount of cash he was responsible forcarrying and handing over in exchange for the pseudoephedrine. We agree with theCrown that Mr Clausen's offending engages some of the significant role indiciadiscussed in Zhang. Mr Clausen must have had some awareness and understandingof where he sat within the operational structure and also of the scale of the enterprise.He must have known that he was taking an important role in the purchase of a verylarge amount of pseudoephedrine with others on the instructions of persons further upthe chain of command and that that quantity of pseudoephedrine was going to be onsupplied to others, either as methamphetamine or to be used in the manufacture ofmethamphetamine.[65] In our view, the starting point adopted by the Judge was appropriate and wellwithin the available range.[66] There was no criticism of the uplift imposed, the discounts allowed or thecumulative sentence imposed in relation to the firearms offending and no error in theserespects is obvious to us. It follows that the sentence appeal must be dismissed.Result[67] The appeals against conviction and sentence are dismissed.Solicitors:Crown Law Office, Wellington for Respondent