SILILOTO & ORS V R [2016] NZCA 328

DRAFTSILILOTO & ORS V R [2016] NZCA 328 [14 July 2016]IN THE COURT OF APPEAL OF NEW ZEALANDCA722/2014[2016] NZCA 328BETWEEN FILIMAEA SILILOTOAppellantAND THE QUEENRespondentCA728/2014BETWEEN JOHN FETUAppellantAND THE QUEENRespondentCA36/2015BETWEEN KAINUI (BEN) KAUKASIAppellantAND THE QUEENRespondentCA234/2015BETWEEN ZEBULIN MARIO DAVORENAppellantAND THE QUEENRespondentHearing: 10 May 2016Court: Harrison, Simon France and Woolford JJCounsel: B L Sellars for Appellant (CA722/2014)M W Ryan for Appellant (CA728/2014)S J Bonnar QC for Appellant (CA36/2015)S J Lance and K L Wendt for Appellant (CA234/2015)K S Grau and A J Ewing for RespondentJudgment: 14 July 2016 at 10 amJUDGMENT OF THE COURTA The appeal against sentence in CA722/2014 is allowed. The sentence of seven anda half years' imprisonment is quashed. A sentence of six and a half years' imprisonment with a minimum period of three years and three months'imprisonment is substituted.B The appeal against conviction and sentence in CA728/2014 is dismissed.C The appeal against sentence in CA36/2015 is allowed. The sentence of 10 yearsand nine months' imprisonment with a minimum period of five years and four months' imprisonment is quashed. A sentence of nine years and three months' imprisonment with a minimum period of four years and seven months'imprisonment is substituted.D The appeal against sentence in CA234/2015 is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Harrison J)Introduction[1] Following a four month trial before Toogood J and a jury in the High Court at Auckland in 2014, nine members of an organised drug manufacturing and distribution syndicate were found guilty of numerous criminal offences. Two other men were found guilty of one related charge by virtue of a single transaction with a syndicate member. The eleven men were later convicted and sentenced to termsranging between 18 and a half years' imprisonment and home detention.1 Minimum periods of imprisonment of half of the finite terms were imposed in a number of cases.1 R v Afakasi [2014] NZHC 2907 [Sentencing notes].[2] Seven of the men have appealed. One of them, Henry Afakasi, a ring leader in the syndicate who was sentenced to 14 years imprisonment, died before his appeal was heard.2 Of the other six, John Fetu has appealed against his conviction and sentence; Christopher Wise and Justin Abel have appealed against their convictions only;3 and Zebulin Davoren, Ben Kaukasi and Filimaea Sililoto have appealed against sentence only.[3] By way of brief background, in December 2011 a clandestine methamphetamine laboratory exploded and set fire to premises in West Auckland. A one-year police investigation followed, leading to discovery of a major methamphetamine manufacturing and distribution enterprise. Within a few monthsof the investigation's inception, the group changed the focus of its activities intodistributing pseudoephedrine, a precursor used in manufacturing methamphetamine.[4] Messrs Afakasi and Davoren were the ringleaders and overseers. When sentencing the late Mr Afakasi, Toogood J found that he had come into possession of more than $300,000 between July and November 2012 (when arrested in a Thai restaurant in Mount Eden he and three others were in possession of $245,479 cash). He also bought a motor vehicle for $78,000 cash. The other men —except for Messrs Wise and Abel — were further down in the hierarchy, acting as distributors, couriers, drivers and suppliers.[5] We would normally address the conviction appeal first. However, Mr Fetu'sparticipation in the offending was relatively peripheral and his appeal is on discretepoints. The nature and scale of the syndicate's offending will be better understood ifwe address the appeals against sentence first, starting with Mr Davoren.2 Mr Afakasi's appeal was thus abandoned.3 The appeals by Messrs Wise and Abel were allowed following argument of these appeals. Our reasons judgment is being issued contemporaneously with this judgment: [2016] NZCA 327.Zebulin Davoren(a) Sentence[6] Mr Davoren absconded towards the end of his trial. He was sentenced separately, some six months after his co-offenders.4 He appeals against his endsentence of 18 and a half years' imprisonment with a minimum period of nine years and three months.[7] Mr Davoren was found guilty of 31 charges of manufacturing, supplying and offering to supply methamphetamine and possessing it for supply; conspiring to manufacture methamphetamine; producing pseudoephedrine, possessing it for supply and supplying it; and conspiring to defeat the course of justice and participating in an organised criminal group.(b) Appeal[8] Mr Lance for Mr Davoren did not challenge Toogood J's starting point of13 and a half years for the index offence of manufacturing 510 grams of methamphetamine. He accepted also that the five-year uplift applied by the Judge was available for the balance of Mr Davoren's offending in isolation. However, inhis submission the end result of a sentence of 18 and a half years' imprisonmentbreached the totality principle and was disproportionate and manifestly excessive.[9] Mr Lance submitted that the Judge erred in (1) finding that Mr Davoren was by far the most deeply and actively involved of all members of the syndicate given that the cash located at his premises was $76,645 when contrasted to Mr Afakasi'scash receipts of over $300,000; (2) failing to recognise the ongoing and overlapping nature of his offending; and (3) imposing a sentence which was disproportionate to those imposed on Messrs Afakasi and Kaukasi given the group or joint nature of the offending. In support Mr Lance referred to a number of sentences imposed in the High Court.54 R v Davoren [2015] NZHC 807.5 R v Zhang [2015] NZHC 2325; Ho v R [2015] NZCA 320; R v Allen [2016] NZHC 445; R v Stevens [2015] NZHC 2336.(c) Analysis[10] We reject Mr Lance's submission. The Judge had presided over a lengthy and complex criminal trial. He was in the best position to determine the functions undertaken by each member of the group over a one-year period and to assess their relative culpabilities. The sentences imposed on the ringleaders including Mr Davoren reflect a careful exercise in proportionality and consistency.[11] For example, Mr Afakasi was convicted and sentenced on four counts of manufacturing methamphetamine of about 280 grams. By comparison Mr Davoren was convicted and sentenced on eight counts of manufacturing at least 500 grams of methamphetamine. Mr Afakasi's end sentence was 14 years' imprisonment from abase starting point of eleven and a half years. We are not satisfied that the Judge erred in finding that Mr Davoren was much more actively involved than Mr Afakasiin the syndicate's activities when manufacturing, producing and distributingmethamphetamine between November 2011 and February 2012. We agree with Ms Grau that in all the circumstances it would have been open to the Judge to adopta higher starting point than 13 and a half years' imprisonment.[12] Similarly, we are not satisfied that the Judge misapplied the totality principle when he uplifted the sentence starting point by five years for the balance of Mr Davoren's offending. One of those offences — supplying 28 grams of methamphetamine — would have merited a starting point of four years on its own. And, as Toogood J found, the discrete pseudoephedrine dealing charges would have merited a seven-year starting point on their own.6 An increase of five years for all this offending did not transgress the totality principle.[13] It is relevant also that the Judge did not increase the starting point on account of Mr Davoren's convictions on charges of conspiring to defeat the course of justice and participating in a criminal group under s 98A of the Crimes Act 1961. He was not satisfied that this discrete offending added materially to Mr Davoren's overallcriminality.7 His approach is directly relevant to Mr Kaukasi's appeal, which we6 R v Davoren, above n 4, at [20].7 At [25].shall address next. Nor did the Judge increase the starting point on account of Mr Davoren's extensive criminal history.8(d) Conclusion[14] Mr Lance properly accepted that the question is whether the overall sentence of 18 and a half years was excessive. Mr Davoren's offending was prolonged,intense and serious. He made significant financial gains. He was a leading light in a major drug dealing syndicate. When viewed in this way, we are not satisfied that the Judge erred in imposing an end sentence of 18 and a half years' imprisonment with a minimum period of nine years and three months' imprisonment.Ben Kaukasi(a) Sentence[15] Mr Kaukasi was found guilty of five counts of manufacturing not less than 336 grams of methamphetamine over a two-month period. He was also found guilty of participating in an organised criminal group. He was sentenced to 10 years andnine months' imprisonment with a minimum period of imprisonment of five yearsand four and a half months.[16] Toogood J found that Mr Kaukasi was a member of what he described as thesyndicate's inner circle.9 While he was not as high up the chain as Messrs Afakasi and Davoren, he acted effectively as their lieutenant. He also benefited materially from his offending. He owned a gold bar, two motor vehicles valued at about $40,000 and was found with cash of $10,000. He also received significant cash proceeds from sales by others. By comparison with Messrs Afakasi and Davoren, the Judge was satisfied that the appropriate starting point was 10 years.[17] In the Judge's view a starting point of three to four years' imprisonmentwould have been appropriate on its own for Mr Kaukasi's conviction on the separatecharge of participating in an organised criminal group.10 The Judge noted8 At [29].9 Sentencing notes, above n 1, at [32].10 At [35].Mr Kaukasi's membership of the inner circle and receipt of significant material benefits from the enterprise. But he accepted that there was an element of overlap with the specific offending. He applied an upwards adjustment of one year.(b) Appeal[18] Mr Bonnar QC did not take issue with the 10-year starting point. However, in his submission the end sentence was manifestly excessive because (1) the uplift of one year applied by the Judge for Mr Kaukasi's participation in an organisedcriminal group was inappropriate in the absence of any significant additional criminality and amounted to double counting; and (2) the three-month discount allowed for mitigating factors, particularly time spent on highly restrictive bail conditions, was inadequate.[19] In Mr Bonnar's submission, the Judge effectively imposed an uplift for offending which was of a completely overlapping nature with the five methamphetamine manufacturing offences: he conflated conviction on the organised criminal group charge with a necessary uplift in the overall starting point. Mr Bonnar emphasised the absence of evidence of discrete criminality other than Mr Kaukasi's generic participation in an organised criminal group and submitted thatthe factors given particular weight by the Judge in this part of the sentencing exercise — Mr Kaukasi's membership of the group's inner circle and receipt ofsignificant material benefits — had already been reflected in the starting point. In Mr Bonnar's submission the appropriate end sentence would have been about nine years' imprisonment.(c) Analysis[20] We accept Mr Bonnar's submission that Parliament's purpose in creating theoffence of participation in an organised criminal group was to provide criminal sanctions for additional proven criminality which would not otherwise have been captured by a substantive offence. We also agree with him that it was not thelegislature's intention in enacting s 98A to ratchet up sentencing levels for thoseinvolved in operating methamphetamine manufacturing and dealing operations. Major drug-trading enterprises invariably involve a number of participants. Thejoint nature of the enterprise is central to its effectiveness. But in a case like this aprincipal participant's culpability is properly reflected in the starting point, asToogood J himself acknowledged when sentencing Mr Davoren.[21] We accept Ms Grau's submission that Parliament has chosen to enact adistinct provision with its own penalties independent from the underlying criminal activity engaged in by the group. However, the concurrent nature of the offending is relevant when determining whether to impose an uplift in the starting point for the discrete organised criminal group charge. Cases may arise where the nature and scale of the criminal enterprise itself merits an uplift notwithstanding the offender'sconviction on substantive charges. It is not necessary for us to decide whether that factor applies here. That is because the Judge himself concluded that thecircumstances did not merit an uplift to Mr Davoren's starting point on account of his conviction on the organised criminal group charge, even though he was found guilty on many more charges than Mr Kaukasi.11 The principle of consistency required that the same approach be adopted when sentencing Mr Kaukasi. For that reason we are satisfied that the Judge erred in adding an extra year to Mr Kaukasi'sstarting point.(d) Restrictive bail conditions[22] We agree also with Mr Bonnar that the three-month discount allowed for the 22 months spent on restrictive bail conditions was inadequate. Mr Kaukasi was subject to a 24-hour curfew for one year following his arrest. For the 10 months preceding trial he was on a night-time curfew.[23] We disagree with Mr Bonnar, however, that an allowance of 12 months was necessary. In our judgment a discount of six months was appropriate. In this respect we note the Judge allowed Mr Afakasi the same discount for spending six months on electronically monitored bail including a 24-hour curfew.12 The end sentence is thus reduced to nine years and three months' imprisonment.11 R v Davoren, above n 4, at [25].12 Sentencing notes, above n 1, at [25].(e) Minimum term[24] Mr Bonnar also challenged the imposition of a minimum period of imprisonment. He emphasised that the Crown did not initially seek a minimum term. Its position only changed during the course of the sentencing hearing. Thus, Mr Bonnar complained, he did not enjoy the benefit of time to research or prepare submissions in answer.[25] We reject this submission. Counsel of Mr Bonnar's ability and experienceare familiar with the general sentencing principle that serious drug offenders, into which category Mr Kaukasi plainly fell, can expect a minimum period of imprisonment of at least half of the finite term in the absence of compelling personalcircumstances. It is apparent from the Judge's sentencing notes that Mr Bonnar was able to redress any unfairness in oral argument. He has had the same opportunity on appeal. Complaints of procedural unfairness in this context carry little weight unless a defendant is denied his substantive rights.[26] In support of his challenge to the imposition of a minimum term, Mr Bonnar pointed to Mr Kaukasi's age of 30 years and the absence of an extensive or seriouscriminal history. He also emphasised that Mr Kaukasi had only been drawn into this group after his sister entered into a serious relationship with Mr Davoren and pointed to prospects of rehabilitation.[27] The seriousness of Mr Kaukasi's offending answers Mr Bonnar's submission.We are not satisfied that the Judge erred in imposing a minimum period of imprisonment of approximately one half of the finite term. However, the appeal must be allowed to the extent of reducing that term to four years and seven monthsto align it with the reduced finite sentence of nine years and three months'imprisonment.Filimaea Sililoto(a) Sentence[28] Filimaea Sililoto was found guilty on ten charges: manufacturing methamphetamine; producing, supplying and possessing pseudoephedrine for supply; and participating in an organised criminal group. He was sentenced to a term of seven years and six months' imprisonment with a minimum period of threeyears and nine months.[29] Mr Sililoto was found guilty of supplying or possessing for supply pseudoephedrine which the police estimated would sell for around $470,000 (about 4.2 kilograms) and yield more than two kilograms or $2 million of methamphetamine. The Judge found that Mr Sililoto occupied the role of courier and driver but he was in close contact with the leaders of the group. Ms Sellars for Mr Sililoto does not take issue with Toogood J's starting point of seven years.[30] The Judge then imposed an uplift of 12 months for totality which he reduced by six months to reflect the serious injuries suffered by Mr Sililoto in a fire while he was producing pseudoephedrine.13[31] When sentenced for the subject offences Mr Sililoto was aged 34 years. Toogood J was aware that when he was aged 15 years Mr Sililoto had been convicted of murder and sentenced to life imprisonment.14 He had been released on parole in August 2010. But he remained of course subject to his life sentence.[32] In the High Court the Crown had sought an uplift of six to nine months on the appropriate starting point to reflect Mr Sililoto's offending while he was subject to alife sentence; Ms Sellars had countered that the uplift for that factor should be confined to three to six months. However, the Judge did not apparently uplift the sentence on account of that factor. The uplift applied was limited to the totality of the offending.13 At [48] and [55].14 At [50].(b) Appeal[33] Before us Ms Sellars advanced a new argument based upon the effect of Mr Sililoto's sentence of life imprisonment. On 2 November 2012 Mr Sililoto was arrested for this offending and remanded in custody. On 8 November 2012 the Parole Board made an interim order recalling him to serve his sentence of life imprisonment. In February 2013 the Board made a final order for recall. Mr Sililoto remained in custody on the life sentence until sentencing for these offences on 20 November 2014.[34] Shortly after Mr Sililoto was sentenced in the High Court, Ms Sellars received advice from the Department of Corrections that the intervening two-year period before trial starting on 8 November 2012 was treated for administrative purposes as time spent on recall for Mr Sililoto's previous life sentence. It was notcounted administratively against his current sentence of seven and a half years'imprisonment. In effect, Mr Sililoto started to serve that term on the date he was sentenced. He did not enjoy the standard benefit of an allowance for the two years spent in custody on remand pending trial. In these circumstances Ms Sellars submitted his appeal should be allowed by reducing the sentence to five years and six months. Otherwise Mr Sililoto will suffer double punishment.(c) Analysis[35] By virtue of s 90 of the Parole Act 2002 any time spent on remand after a person is arrested is counted towards the sentence imposed following conviction.15However, this administrative credit does not include detention while in legal custody in accordance with the Corrections Act 2004 and serving a sentence of imprisonment.16 That includes time spent in prison following an application for a recall order if a final recall order is made.17 This Court has recognised a risk of double punishment where the time spent in custody does not count as pre-sentence15 As a corollary, when determining the length of a sentence of imprisonment to be imposed, a sentencing judge must not take into account any part of a period during which the offender was on pre-sentence detention: Sentencing Act 2002, s 82.16 Parole Act 2002, s 91(5)(a).17 Section 91(6).detention.18 In this case, unlike some others, Toogood J rejected the Crown'sargument for an uplift to the starting point to reflect Mr Sililoto's offending while onparole.[36] Ms Grau submitted that there was no appearance of double punishment and no reduction for time spent on recall was required. She described the uplift for totality of one year as lenient and the allowance of six months for injuries sustained in the fire as generous. While these points may have some force, we think the seven-and-a-half-year starting point adopted by the Judge — excluding any allowance for offending while on parole — was appropriate.[37] We are satisfied that Mr Sililoto's appeal should be addressed in this way:first by applying an uplift to the starting point of six months to reflect Mr Sililoto'soffending while on parole which is an appropriate punitive response to his decision to reoffend while subject to a sentence of life imprisonment; and second by recognising the two years he spent in custody on recall for his life sentence pending trial on these charges. The question is whether the resulting difference of 18 months'imprisonment is so great as to result in a manifestly excessive end sentence.19 The objective is to ensure that Mr Sililoto is not penalised in a double fashion.20[38] This point will be the subject of authoritative consideration in the near future.21 Indeed, there are rival lines of authority. Three approaches emerge from decisions of this Court since the introduction of the current sentencing framework in 2002,22 In R v Paul this Court allowed a discount of full equivalence to the period of five months spent on recall prior to sentencing.23 Conversely, in R v Graham — on which Ms Grau relied — this Court refused to reduce the sentence by any measure:2418 Oliver v R [2014] NZCA 285 at [9]; Te Aho v R [2008] NZCA 47 at [26].19 Oliver v R, above n 18, at [9]–[10].20 R v Paul CA409/05, 25 April 2006.21 Marino v The Chief Executive of the Department of Corrections [2016] NZCA 133 at [29]. The Supreme Court recently granted leave to consider the interpretation and application of ss 90 and 91 of the Parole Act: Marino v The Chief Executive of the Department of Corrections [2016] NZSC 52. See also Booth v R [2016] NZSC 43.22 The legislative history is summarised briefly by Venning J in Young v Chief Executive, Department of Corrections HC Auckland, CIV-2010-404-6115, 20 October 2010 at [15]–[17].23 R v Paul, above n 20, at [34]–[40].24 R v Graham CA293/05, 14 December 2005.[23] There can be no question of the offender being punished twice for the same offending. That the later offending may trigger consequences under both the Parole Act and the Sentencing Act is entirely consistent with the legislative policy of the two statutes which were part of the same legislative passage.[39] The third and intermediate position adopted by this Court confronts the practical overlap of the statutory regimes by striving for a balance between the risk of double punishment and need to condemn offending while on parole.25 Further complications arise if a sentencing judge must consider whether cumulative or concurrent sentences should be imposed.26[40] In our judgment the just and proper course in the case of Mr Sililoto is to substitute an adjusted starting point of eight years, being the Judge's adjusted startingpoint of seven and a half years together with a further six months for offending while on parole. A reduction of 18 months to reflect the element of double punishment should then be made. In the circumstances of this particular offending our approach balances both the requirement to punish Mr Sililoto for offending while on parole against the need to ensure that he does not suffer an unfair penalty. The end sentence is thus six and a half years' imprisonment. We are confident that the Judge wouldhimself have made an adjustment if he had been aware of the further information supplied by Ms Sellars on appeal.(d) Minimum term[41] Ms Sellars also submitted that the Judge erred in imposing a minimum term of half of the finite sentence on the same grounds as those adopted for Mr Kaukasi'ssentence. She relied primarily on the same ground advanced by Mr Bonnar QC for Mr Kaukasi that the Crown did not give notice of its intention to apply for a minimum sentence. We have already dismissed that argument.27[42] Ms Sellars also relied on the Judge's finding that Mr Sililoto's role waslargely limited to acting as a courier driver for those higher in the group and that he did profit in any meaningful way from his offending. We see no reason to depart25 Vernon v R [2008] NZCA 308; Tukuafu v R [2015] NZCA 251; Oliver v R, above n 18; Te Aho v R, above n 18.26 Faulkner v R [2016] NZCA 315; Booth v R [2015] NZCA 603.27 See [25] of this judgment.from the Judge's approach. Mr Sililoto's offending was serious and commenced justover a year after his release on parole.[43] However, Mr Sililoto's appeal will be allowed to the extent necessary to reflect an adjustment to the substituted finite sentence of six and a half years. The appropriate minimum sentence to be substituted is therefore three years and threemonths' imprisonment.John Fetu(a) Conviction(i) Inadmissible evidence[44] Mr Fetu appeals against both his conviction and sentence. He was found guilty of two charges of possessing pseudoephedrine for supply. He was a peripheral participant who was incriminated through two transactions arranged with members of the syndicate by phone and text messages in late August and early September2012. He was sentenced to four years' imprisonment.[45] Mr Ryan advanced Mr Fetu's appeal on two grounds. First, he submitted thatToogood J erred in ruling that voice identification evidence was admissible against Mr Fetu at trial. Voice identification evidence offered by the prosecution is inadmissible unless the Crown proves on the balance of probabilities that the circumstances in which the identification was made have produced a reliable identification.28 At trial the Crown led the requisite evidence from Detective Steven Norris. He identified Mr Fetu's voice from audio transcriptions of recorded callsmade from three separate cell phone numbers when arranging the two dealing transactions.[46] Detective Norris spoke with Mr Fetu intermittently over a four-and-a-half- hour period around the time of his arrest on 28 November 2012. When asked by the officer, Mr Fetu was evasive about his name. But he later conversed with Mr Norris on a number of subjects. They spoke for about an hour and a half before his counsel28 Evidence Act 2006, s 46. "Voice identification evidence" is defined in s 4(1) of the Act.advised the detective that Mr Fetu would not make a statement or participate in a voice identification procedure.[47] However, while he was being transported to the Auckland Central Police Station later that morning, Mr Fetu enquired of Detective Norris about what was said in the recorded conversations. The detective explained the requirements of the voice identification procedure if Mr Fetu wished to hear the recordings. Mr Fetu then agreed to participate. He was cautioned and confirmed his understanding of the procedure, including his obligation to respond to the intercepted communications. Mr Fetu signed the appropriate form. Three phone conversations were played to him. When asked who was speaking Mr Fetu declined to comment. Shortly after the procedure concluded Mr Fetu asked the detective a number of questions.[48] Mr Ryan challenged the admissibility of Detective Norris' evidence duringthe trial. He submitted, as he did before us, that the voice identification evidence was improperly obtained. In dismissing this submission, and ruling the evidence admissible, Toogood J found that Mr Fetu had made a voluntary, informed and unequivocal waiver of his right to silence.29 Among other things the Judge was satisfied that Mr Fetu understood his right to silence and counsel, which he exercised when he considered it appropriate; that he was sufficiently familiar with the criminal system to understand and decide whether to cooperate with the police; that there was no evidence of coercion; and that he participated in the voice identification procedure because he was curious about the recordings.[49] In any event the Judge found that even if the evidence had been improperly obtained because the detective had breached Mr Fetu's right to silence, it should beadmitted by applying the balancing exercise required by s 30(3) of the Evidence Act 2006.30 The Judge's ruling that the evidence satisfied the threshold statutoryrequirement of reliability is not challenged.[50] On appeal Mr Ryan has simply run the same arguments advanced unsuccessfully in the High Court. He has failed to persuade us that Toogood J erred29 R v Fetu [2014] NZHC 1307 at [24].30 At [27]–[28].when dismissing Mr Fetu's admissibility challenge. The Judge carefully analysed allthe relevant evidence. His conclusion that Mr Fetu had waived his right to silence is soundly based, even irrefutable. We can see no reason to interfere with his conclusions that the evidence was not improperly obtained but, if it was, the result of the statutory balancing test required its admission.[51] Even if the Judge had erred, we agree with Ms Grau that there was nomiscarriage of justice arising from the admission of Detective Norris' evidence.Mr Fetu did not give evidence in his defence at trial. But he called a retired police officer, Philip Green, who expressed the opinion that it was unclear whether it was Mr Fetu's voice in the intercepted communications. Mr Green relied on his previous experience with voice identification, his own conversations with Mr Fetu, his own assessment of the intercepted conversations and, most significantly, his assessment of a role play recording by Mr Fetu himself following the police transcripts of the intercepted communications.[52] The Crown challenged the admissibility of Mr Green's evidence. His qualification as an expert was in issue. Nevertheless, Toogood J allowed Mr Green to give evidence. That course permitted the video of Mr Fetu's role playitself to be played to the jury which was able to decide for itself whether the intercepted voice was Mr Fetu's regardless of Detective Norris' opinion.(ii) Unreasonable verdicts[53] Second, in written argument Mr Ryan suggested that the jury's guilty verdictswere inconsistent and perverse.31 Mr Fetu was found guilty of two charges and acquitted on three. Mr Ryan's thesis was that the voice identification evidence wasof limited cogency; and evidence relating to charges on which Mr Fetu was acquitted was more cogent and reliable.[54] This argument is without merit. As Ms Grau noted and Mr Ryan accepted, the Crown led circumstantial evidence additional to the voice identification evidence in support of the two counts on which Mr Fetu was found guilty. By comparison, the31 B (SC12/2013) v R [2013] NZSC 151, [2014] 1 NZLR 261.generic attribution evidence — such as voice identification — underpinned all five charges, including the three charges which relied solely on voice identification evidence and on which he was acquitted. The available inference is that the jury was not satisfied of Mr Fetu's guilt on those three charges. We cannot see any plausible basis for an argument of inconsistency or perversity.(b) Sentence[55] The sentence of four years' imprisonment imposed on Mr Fetu was both thestarting and end point adopted by the Judge.32 Mr Fetu transacted with Mr Davoren on two occasions and received about 1.35 kilograms of pseudoephedrine for retail. The Judge was satisfied that Mr Fetu intended to engage in significant commercial drug dealing; and that he would have continued were it not for the effect of the police investigation.[56] Mr Ryan argued that the Judge erred because, by reference to the leadingauthorities, the appropriate starting point was three years' imprisonment. However,the High Court decisions to which Mr Ryan referred were decided before pseudoephedrine was reclassified from a class C to a class B drug in 2011. Moreover, as Ms Grau pointed out, even without the reclassification, those sentences support the starting point of four years adopted by the Judge. Indeed, Mr Ryan conceded that the starting point of four years was within the available range.Result[57] The appeal against sentence in CA722/2014 is allowed. The sentence of seven and a half years' imprisonment is quashed. A sentence of six and a half years'imprisonment with a minimum period of three years and three months' imprisonment is substituted.[58] The appeal against conviction and sentence in CA728/2014 is dismissed.[59] The appeal against sentence in CA36/2015 is allowed. The sentence of 10 years and nine months' imprisonment with a minimum period of five years and32 Sentencing notes, above n 1, at [103] and [106].four months' imprisonment is quashed. A sentence of nine years and three months'imprisonment with a minimum period of four years and seven months' imprisonment is substituted.[60] The appeal against sentence in CA234/2015 is dismissed.Solicitors:McVeagh Fleming, Auckland for Appellant CA36/2015Crown Law Office, Wellington for Respondent