MILOSEVIC v R [2022] NZCA 479

MILOSEVIC v R [2022] NZCA 479 [12 October 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA99/2021CA79/2021CA122/2021CA153/2021CA400/2021CA114/2021CA119/2021[2022] NZCA 479BETWEEN FRANK AMADEUS MILOSEVICSLOBODAN RAHOROI MILOSEVICSTARLIGHT WHETUMARAMAMANUELLAWRENCE TE KIRAKEITH PRYORIRENE RAKIRAIHA TAWERAAppellantsAND THE KINGRespondentHearing: 30 and 31 March 2022Court: Clifford, Lang and Mallon JJCounsel: W T Nabney for Frank Amadeus MilosevicG A Walsh for Slobodan Rahoroi MilosevicM J James for Starlight Whetumarama ManuelA M Simperingham and D A Berry for Lawrence Te KiraC D Bean and A Bean for Keith PryorR E Webby for Irene RakiN M Dutch for Raiha TaweraF R J Sinclair, Z A Fuhr and T R Simpson for RespondentJudgment: 12 October 2022 at 3.00 pmJUDGMENT OF THE COURTA Mr F Milosevic and Mr S Milosevic's appeals against conviction areallowed in part. Their convictions for money laundering are quashed.Their appeals against conviction are otherwise dismissed.B Mr F Milosevic's appeal against sentence is allowed in part. We substitutehis sentence of 17 years and six months' imprisonment with a 50 per centMPI with one of 16 years and six months' imprisonment with a50 per cent MPI.C Mr S Milosevic's appeal against sentence is allowed in part. We substitutehis sentence of 15 years and nine months' imprisonment with a 50 per centMPI with one of 14 years and nine months' imprisonment with a50 per cent MPI.D Ms Raki and Ms Tawera's appeals against conviction and sentenceare allowed. Their convictions for money laundering are quashed.E Mr Manuel's appeal against conviction and sentence is dismissed.F Mr Pryor's application for an extension of time to appeal is granted, but hisappeal against conviction and sentence is dismissed.G Mr Te Kira's appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)TABLE OF CONTENTSIntroduction [1]Background [2]Offending [2]Convictions and sentences [4]Conviction appeals [6]The trial [8]Conviction appeals [12]Drug offending [16]Inadequate computer access — F Milosevic [16]The glossary of terms [33]Mr Boyes' evidence — Mr S Milosevic [38]The F Milosevic "cross-examination" ruling [42]The Judge's interventions [44]F Milosevic [45]Detectives Scott, Waugh and Sowter [70]The Judge's summing up [75]Money laundering [92]Overview [92]The severance decision [96]Interventions — cross-examination Ms Clay [128]The late amendment of the charge [139]The Judge's summing up [143]Our assessment [149]Sentence appeals [160]Mr F Milosevic [163]Mr S Milosevic [173]Mr Pryor [188]Mr Te Kira [192]Mr Manuel [199]Result [204]Introduction[1] On 13 November 2020, following an eight-week jury trial, the appellants wereconvicted on a range of methamphetamine and cannabis offending, and associatedmoney laundering, charges. They were sentenced by Judge Mabey KC inthe District Court at Tauranga on 11 and 12 February 2021. These are appeals againstconviction and sentence.1BackgroundOffending[2] The charges the appellants faced arose out of a police operation called"Operation Notus" conducted from August 2017 to March 2018 (the Operation).The Operation resulted in the arrests of more than 50 people. The Crown decided togroup the various people charged for hearing over three separate trials. A number ofpeople pleaded guilty. In the trial before Judge Mabey, there were eight defendantswho went to trial, seven (the appellants) were convicted, one was acquitted.[3] The Crown's case at trial was that Mr Frank Milosevic, the president ofthe Kawerau chapter of the Mongrel Mob, and his son Mr Slobodan Milosevic werethe leaders of a methamphetamine and cannabis business involving, as relevant, some2.5 kg of methamphetamine and some 400 cannabis plants.2 Whilst Mr F Milosevicwas president, the Crown asserted Mr S Milosevic was his "right hand man".The Crown also alleged, by reference to expert accounting evidence of a Ms Clay, thatapproximately $510,000 was laundered by the Milosevics and their partners, Ms Rakiand Ms Tawera.1 For completeness, we record some appellants have sought extensions of time to appeal.The required extensions were granted in a minute of Miller J on 3 May 2021 for all appellantsexcept Mr Pryor. Mr Pryor's appeal was filed approximately four months out of time. The Crowndoes not oppose the application for an extension of time, having not been prejudiced by thelate filing. We accordingly grant Mr Pryor an extension of time to appeal.2 We shall refer to Mr Frank Milosevic as "Mr F Milosevic" and Mr Slobodan Milosevic as"Mr S Milosevic". When referring to them both, we will simply say "the Milosevics".Convictions and sentences[4] The details of the charges the appellants faced at trial and their convictions andsentences are as follows:(a) Mr F Milosevic (CA99/2021) faced 20 charges involvingmethamphetamine, cannabis and money laundering offences, wasfound guilty of 16 of those charges and was sentenced to 17 years andsix months' imprisonment, with a minimum period of imprisonment(MPI) of eight years and nine months.3(b) Mr S Milosevic (CA79/2021) faced 20 charges of methamphetamine,cannabis and money laundering offences, was convicted on 19 of thosecharges and was sentenced to 15 years and nine months' imprisonmentwith an MPI of seven years and 10 months.4(c) Ms Raki (CA114/2021), Mr F Milosevic's partner, faced and wasconvicted on two charges of money laundering and was sentenced totwo years and six months' imprisonment.5(d) Ms Tawera (CA119/2021), Mr S Milosevic's partner, faced and wasconvicted on three charges of money laundering and was sentencedto 12 months' home detention followed by nine months' post-detentionconditions.6(e) Mr Manuel (CA122/2021) faced 15 charges, principally in relation todealing, possession and supply of some 120 ounces of cannabis as wellas some minor methamphetamine offending, was convicted on 14 ofthose charges and sentenced to three years and four months'imprisonment.73 R v Milosevic [2021] NZDC 2318 [Mr F Milosevic sentencing notes].4 R v Milosevic [2021] NZDC 2363 [Mr S Milosevic sentencing notes].5 R v Raki [2021] NZDC 2567 [Ms Raki sentencing notes].6 R v Tawera [2021] NZDC 2601 [Ms Tawera sentencing notes].7 R v Manuel [2021] NZDC 2528 [Mr Manuel sentencing notes].(f) Mr Pryor (CA400/2021) faced and was convicted on six dealingcharges; three each relating to cannabis and methamphetamine and wassentenced to six years and nine months' imprisonment.8(g) Mr Te Kira (CA153/2021), who was one source of the Milosevics'methamphetamine, faced and was convicted on four charges in relationto the offer, supply and possession for supply of methamphetamine andwas sentenced to four years' imprisonment.9[5] All except Mr Te Kira appeal their convictions and sentences. Mr Te Kira onlyappeals his sentence. Ms Tawera's counsel now says that, since she has served herone year of home detention, her sentence appeal is moot and as such we need notconsider it.Conviction appeals[6] A number of the appellants raise similar challenges to their convictions:(a) The Milosevics, Mr Manuel, Ms Raki and Ms Tawera all say the waythe Judge (i) conducted their trials, particularly by interfering adverselyto their interests during the taking of the evidence of Detectives Scott,Waugh and Sowter, Ms Clay and Mr F Milosevic himself, and(ii) summed-up favourably to the Crown, resulted in a miscarriageof justice.(b) The Milosevics, Ms Raki and Ms Tawera challenge:(i) the Judge's decision declining severance of the moneylaundering charges;(ii) the Judge's decision allowing amendment of the terms of themoney laundering charges after the close of the Crown's case;and8 R v Pyror [2021] NZDC 2409 [Mr Pryor sentencing notes].9 R v Te Kira [2021] NZDC 2607 [Mr Te Kira sentencing notes].(iii) the admissibility of Ms Clay's expert accounting evidence.(c) Mr S Milosevic, Mr Manuel, My Pryor and Ms Raki and Ms Tawera allsay the Judge erred in ruling their counsel could not "cross-examine"— as they put it — Mr F Milosevic.[7] In addition:(a) Mr F Milosevic he says he was wrongly denied access to a computerwhilst in prison on remand. That inhibited his ability to adequatelyprepare his defence, given the prosecution case relied on thousands ofintercepted audio calls and text messages.(b) Mr S Milosevic says:(i) a glossary of terms (exhibit B) of commonly used drug codeswas wrongly allowed as evidence:10 and(ii) evidence of telephone calls between Mr S Milosevic and aMr Blair Boyes (in relation to transactions and discussionsaround firearms) should not been included as having noprobative value and being unfairly prejudicial.(c) Ms Raki complains she was not able to engage the services of an expertaccountant because she only received Ms Clay's financial analysissix weeks before the trial began. Whilst the police had provided anearlier brief from a Detective Shallcross, Ms Raki says Ms Clay'sevidence was different in terms of complexity, quantum andconfiguration.10 Mr Manuel also advances this argument: his submissions were filed jointly with Mr S Milosevic'sand are dealt with accordingly.The trial[8] Those grounds of appeal need to be placed in the context of the trial as a whole.In summary:(a) This was a long trial, lasting some eight weeks (21 September to13 November 2020). Evidence was taken over 24 sitting days resultingin a transcript, including the Judge's challenged interventions and hismany — as is commonplace in a trial of this nature — exchanges withcounsel, that runs to 2,250 pages.(b) The prosecution case involved a total of 35 witnesses, 10 of whoseevidence was read by consent, took a total of 18 sitting days andproduced 1,597 pages of transcript. The Crown's evidence fell intothree main categories:(i) The first, and by far the largest, comprised intercepted textmessages being read into the record, intercepted telephoneconversations being played and the significance of call dataobtained by production orders from telephone companiesbeing explained.(ii) The second comprised evidence gathered by the police duringwhat is known as the "termination" phase of the Operationwhere relevant premises are searched, suspects arrested andevidence, such as of drugs and firearms, obtained.(iii) The third comprised financial evidence on which the moneylaundering charges were based.(c) The defence case occupied six sitting days between 23 Octoberand 2 November. Mr F Milosevic gave evidence and/or wascross-examined on each of those days. The gist of Mr F Milosevic'sevidence was that the terms the police said were code words concealingdrug dealing were not code words at all: rather Mr F Milosevic and hisfamily were active breeders of farm animals and hunters and fishers:the intercepted communications recorded the arrangement andthe details of a large number of exchanges with family, friends andassociates where produce was either sold or given away. Mr Nabney,counsel for Mr F Milosevic, called two further witnesses who supportedMr F Milosevic's narrative.(d) Counsels' closing addresses occupied four sitting days, between3–9 November; the Judge began his summing up on 10 November; andfinally, the jury returned and convictions were entered on 13 November.[9] The Judge, as was necessary, played an active role throughout the trial.Considerable judicial housekeeping was involved to keep the trial moving forwardwithin its scheduled sitting period. Numerous evidential issues were dealt with.The Judge was at pains to ensure the jury were kept informed and to explain to them,in appropriate concrete and direct terms, the legal process that was unfolding.The Judge also paid particular attention to ensuring the jury were not overwhelmed orconfused by the large volumes of written material produced by the Crown, particularlythe texts of intercepted telephone conversations, text messages and call data that wasused to put those intercepted communications into evidence. Taken overall, in ourview the way the Judge conducted the trial, and dealt with counsel and the jury,reflected his considerable experience with trials of this nature and was efficientand appropriate.[10] At the same time, it is fair to say the Judge took a robust approach with counselfrom time to time. But that is not unusual or necessarily inappropriate as defencecounsel do, occasionally, need to be moved on.[11] One example will suffice. At one point defence counsel objected to Crownevidence of an accused, when spoken to by the police, having repeatedly declined toanswer their questions. Defence counsel was concerned that such repeated referencescould be "significantly prejudicial" for his client. The following exchange occurred,beginning with the Judge:Q. It's not prejudicial at all. It's your client asserting his rights whichhe's just been given and it's not like a situation where someone issitting on a video and being cross-examined. There is no prejudice atall. In fact I would have thought from your point of view it's yourclient standing on his rights and making it absolutely clear that hedoesn't want anything to do with the police.A. Well the difficulty I have with that Sir is that lay people like juries —Q. Well you leave the lay people like juries to me [t]hat's a ruling I'vemade and we'll have the jury back please.(Emphasis added.)Conviction appealsOverview[12] We address the drug offending and the money laundering conviction appealsseparately.[13] In the case of the drug offending convictions, we deal first withMr F Milosevic's complaint about inadequate computer access as that relatesprincipally to his ability to respond to the drug charges. We then consider the specificand the more general challenges to the methamphetamine and cannabis convictions,as regards the glossary of terms, the evidence of Mr Boyes, the Mr F Milosevic"cross-examination" ruling, the Judge's interventions and his summing up.[14] We then consider the money laundering conviction appeals as based onthe severance ruling, the claim of partiality as regards Ms Clay, the Judge'sinterventions during Ms Clay's evidence, the Judge's agreement to the amendment ofthe charges after the Crown's closing and the Judge's summing up.[15] That order approximates that in which the matters those challenges are basedon occurred during the trial.Drug offendingInadequate computer access — Mr F Milosevic[16] On the first day of trial Mr F Milosevic applied for a stay on the basisthe limited access he had had to computer facilities meant he had not been ableto adequately prepare his defence. The Judge dismissed that application, issuinga written decision that day.11 The summary of events we set out below is largely takenfrom that decision.[17] When his trial began in September 2020 Mr F Milosevic had been in custodysince he was arrested and charged in March 2018. Disclosure had taken placeprogressively throughout that period, including in September and December 2019 byway of (i) a draft transcript of intercepted audio calls and (ii) an MP4 player loadedwith audio files.[18] Mr Nabney then requested Mr F Milosevic be provided access to a computerto review the 2,212 audio files of intercepted conversations to which he was a party.Mr F Milosevic needed to analyse the intercepted communications in order to properlyinstruct Mr Nabney. That could only occur if he had access to a computer.[19] When, after two years, prison authorities had not granted that request,Mr Nabney commenced judicial review proceedings against the Chief Executive ofthe Department of Corrections in March 2020. Those proceedings were settled inJune 2020: by agreement, Mr F Milosevic was to have access to a computer.[20] In early July 2020, some two-and-a-half months before trial, Mr F Milosevic— then in Waikeria Prison — was provided access to a computer. But the promisedaccess, between 8.30 am and 4.00 pm Monday to Friday, never eventuated.By 24 August access had been reduced to between 8.30 am and 2.00 pm two daysa week.[21] Then, and as Judge Mabey explained in his decision declining thestay application:11 R v Milosevic [2020] NZDC 19129.[36] What happened next in terms of prison management is inexplicableon the face of it, and for which no explanation has ever been given.[37] Mr [F] Milosevic was progressing in Waikeria Prison carrying out theanalysis necessary for the preparation of his defence when on the 28 Augusthe was again transferred to Springhill.[38] The transfer was 3 ½ weeks before his trial. It was done at a timewhen Waikeria authorities were fully aware of the work that Mr [F] Milosevicwas doing in preparation for the trial and when Waikeria was facilitatinghis rights.[41] Upon transfer to Springhill Mr [F] Milosevic understandablyrequested access to a computer. That was flatly denied without reason bySpringhill management. That denial has never been explained despite the factthat Springhill knew from earlier correspondence of Mr Nabney's attempts tohave computer access for his client and the extent of the disclosure thatrequired analysis by Mr [F] Milosevic.[22] By that point, that is by 28 August 2020, Mr F Milosevic had analysed 1,611files covering the period from October 2017 to 2 February 2018. He was still toanalyse 601 files covering the period from 2 February 2018 to 21 March 2018.Denied further computer access until the weekend before his trial commenced,Mr F Milosevic made no further progress.[23] In dismissing Mr F Milosevic's stay application, the Judge acknowledgedthe application "is not only understandable it is entirely appropriate".12 He recognisedthe need for Mr F Milosevic to process the remaining 611 files, comprising 12 hoursof audio time. But he considered there was an alternative remedy to a stay: namely,for Mr F Milosevic to have a computer in prison over the weekend of 26–27September.13 The Judge reserved the possibility of having some shorter days in thesecond week of the trial to allow Mr F Milosevic additional computer time.14The Judge said he would review the position on Monday 28 September, noting:"If, despite the efforts of all concerned, Springhill has not facilitated Mr [F]Milosevic's rights over the coming weekend I will hear Mr Nabney again".1512 At [47].13 At [69] and [71].14 At [74].15 At [75].[24] It was not until 28 September that the prison was ready to providethe computer. The Judge recorded his understanding of what had taken place overthe weekend in a minute of 30 September, concluding:16[19] As of the morning of Wednesday, 30 September Mr [F] Milosevic wasnot in a position to properly instruct his counsel on the intercepted audiocommunications from 2 January 2018 on. He needed more time.[25] The Judge adjourned the trial for the rest of the day to help Mr F Miloseviccatch up. Mr F Milosevic returned to Springhill at 2.00 pm and was offered a laptop.However, he said he wished to have "compound time", which he did, and he was thenprovided with the computer after dinner.[26] The next day the Judge issued a further minute, stating his disappointment thatMr F Milosevic had "deliberately avoided the opportunity that I had given him" andwasted the time that could have been spent on the computer.17 The Judge raisedthe matter with Mr Nabney, stating "there would be no further leeway given to[Mr F Milosevic] by way of down time or court adjournment".18 He went on:[10] Mr Nabney appreciated the position and said that he had beenspeaking to his client that morning. He acknowledged that Mr [F] Milosevicdid choose to have recreational time on his return and that the computer wasgiven to him after dinner lockdown.[11] However, Mr Nabney explained that Mr [F] Milosevic had stayed upuntil the early hours of the morning listening to the balance of the interceptsand was now "up to speed" such that the trial could continue without furtherinterruption.[27] The trial recommenced that day, and Detective Robinson introducedintercepted communications covering the period 9 January 2018 to 21 March 2018:that is, the period of time covering communications of which Mr F Milosevic may nothave by that point undertaken his analysis.[28] Towards the end of that day, Mr Nabney advised the Judge he had to attend aHigh Court sentencing the following day (Friday 2 October) and could not be surewhen he would return to the trial. Mrs Nabney would be in Court. She was, however,16 R v Manuel DC CRI-2018-070-1285, 30 September 2020 (Trial Minute 4 of Judge Mabey KC).17 R v Manuel DC CRI-2018-070-1285, 1 October 2020 (Trial Minute 6 of Judge Mabey KC) at [4].18 At [9].not in a position to cross-examine Detective Robinson. The Judge was not preparedto pause the trial as the Detective had to return to Nelson at 4.00 pm on the Friday.The Detective's evidence concluded on the Friday morning. Mrs Nabney did notcross-examine her.[29] Mr F Milosevic had access to computer facilities until the conclusion of histrial. Although there is no exact record of the hours he had with the computer, beforeus he gave evidence that he would use the laptop after each trial day, listening tothe remaining calls and finishing late into the night. Three weeks afterDetective Robinson finished giving her evidence, Mr F Milosevic gave evidence.His evidence referred to and played calls from each of the months from October 2017to March 2018: that is, the entire period of intercepted communications.[30] As that narrative establishes, the difficulties Mr F Milosevic was experiencingon remand in gaining access to computer time were directly raised by Mr Nabney,were taken seriously by the Judge and were, to the best of the Judge's ability, addressedwithin the constraints of a long and complex trial.[31] Given the increased reliance on digital records in courts generally, and inthe criminal justice system in particular, the need for prisoners to have propercomputer facilities to access those records is becoming increasingly self-obvious.On appeal, however, the issue is not whether Corrections lived up to the undertakingsit made or whether it provided Mr F Milosevic with what he considered he needed.Nor is the question whether the access that was provided was as effective as this Courthas said is desirable.19 Rather, the question is whether, at the end of the day,Mr F Milosevic was accorded adequate time and facilities to prepare a defence so thathis trial was a fair one.20[32] In that context, before us Mr Nabney fairly acknowledged that at the time oftrial and when preparing for the appeal he had not become aware of any instance whereMr F Milosevic had been unable to draw to his attention matters material tohis defence. Nor has anything of that nature been drawn to our attention by19 See Greer v R [2003] NZCA 82.20 Criminal Procedure Act 2011, s 232(2) and (4).Mr F Milosevic in his own evidence on this appeal. We are satisfied, accordingly, thatMr F Milosevic was provided, between his legal representation and the access toa computer he had whilst on remand, a sufficient opportunity to prepare a defence soas not to render his trial unfair.The glossary of terms[33] As part of Detective Sergeant Sowter's expert evidence in relation to drugmatters, the Crown proposed to record in a schedule the various terms the officerwould refer to as commonly known code words used in drug offending.Defence counsel objected to the jury being given the schedule. They did so on thebasis that putting it before the jury would be unfairly prejudicial because it wouldobjectify the officer's evidence and support the proposition that various of thosewords, as used by the defendants in intercepted communications, were code words fordrug dealing. The schedule would have the unfair effect of closing the jury's mind tothe explanation of the communications the defence would advance.[34] The Judge did not agree. He ruled:21[15] I do not consider there is any prejudice that would accrue tothe defendants if the schedule is produced. When it is produced I will directthe jury as to the purpose of the detective's evidence and how they may use it,including the schedule to be produced. I will make clear that he is not givingevidence that the defendants are talking about drugs as that is a matter for theirdetermination. It is however important that they are aware of drugterminology as that is not within their general knowledge and it will besubstantially helpful to them to hear the detective's evidence.[16] At the end of the trial I will give a similar direction.[35] The Judge did just that. Before the schedule was distributed to the jury heprovided an extensive direction, including the following comments:The detective has just produced the document as exhibit 1 and which you'llget a copy of is a glossary of terms. Now he's just been through at some lengthvarious terms that [Crown counsel] asked him about and there was a lot ofthem, wasn't there? I fully expect that many of those terms won't even comeup in the evidence about these eight defendants. The detective is a man whohas been in the police for a long time and he's familiar with some terms buthis evidence is directed at assisting you in dealing with the case againstthese defendants. He's able to give the evidence he has because that would be21 R v Manuel [2020] NZDC 19234.substantially helpful to you to understand things that would not be in yourgeneral knowledge and so he can talk to you about it but what the detective isnot doing is telling you that if any of these words crop up in any of the textsor communications you heard involving the defendants, that those words areabout drugs. He can't tell you that. [36] He made similar comments in his summing up.[37] We are satisfied that direction more than adequately dealt with any potentialunfair prejudice and focused the jury's mind on what the purpose of the evidence wasand how it might be properly used.Mr Boyes' evidence — Mr S Milosevic[38] At a relatively early stage of the Crown case evidence of intercepted telephonecalls between Mr S Milosevic and a Mr Blair Boyes, relating to the purchase of afirearm, was introduced. Mr S Milosevic says that evidence was not relevant becausehe was not facing firearms charges. Moreover it was prejudicial, given the implicitassertions of gang involvement in drug trafficking and associated firearm use.[39] The admissions made pursuant to s 9 of the Evidence Act 2006 containedthe following agreed statement of fact:On 2 November 2017, Blair Boyes sold the defendant Slobodan Milosevic aTikka 300WSM rifle, scope rail, and two boxes of ammunition having usedhis staff discount to purchase the items at Whakatane Hunting and Fishing fora total price of NZD$4,900.On or before 8 December 2017, Blair Boyes sold the defendant SlobodanMilosevic a magazine for the Tikka 300WSM, two 30-shot magazines for anAR-15 semi-automatic rifle, and nine boxes of 20 round Prvi Partizan .223ammunition which he purchased using his staff discount for NZD$180.[40] Prior to trial, the Crown had successfully applied to lead evidence ofMr Boyes's conviction for the supply of that firearm and ammunition toMr S Milosevic.22 The Crown opened its case on the basis that Mr S Milosevic's cashpurchase of firearms from Mr Boyes illustrated the Crown's expert evidence aboutthe use of cash and firearms by drug dealers. During the trial the jury were playedthe intercepted calls in which firearms and methamphetamine transactions were22 R v Manuel DC CRI-2018-070-1285, 16 September 2020 at [5].both discussed. However, the Crown ultimately resolved not to lead the evidence ofMr Boyes's conviction.23 The firearms transactions between Mr S Milosevic andMr Boyes received little attention from the Crown in closing, nor from the Judge insumming up.[41] The defence explanation of the intercepted communications on whichthe charges were based was provided by Mr F Milosevic. The gist of that evidencewas that the family were keen fishers and hunters, and also farmed stock albeit on arelatively small scale. The intercepted communications involved dealing not in drugsbut in the range of produce those activities produced. In that context, we do not seeprejudice in the fact that the evidence included the purchase by Mr S Milosevic — byhis own account a keen hunter — of these firearms and associated paraphernalia.The Mr F Milosevic "cross-examination" ruling[42] Prior to Mr F Milosevic giving evidence, the Judge directed he would, pursuantto s 93 of the Evidence Act, prevent other defence counsel asking "leading questionsin cross-examination of [Mr F Milosevic] calling for a yes/no answer".24 Section 93gives a Judge discretion to take that approach in the interests of justice where a partyis cross-examining a witness who has the same or substantially the same interest asthe cross-examining party. The Judge ruled that was the case as regardsMr F Milosevic and each of the other defendants. The argument on appeal was thatthis had unfairly prevented counsel for the other defendants cross-examiningMr F Milosevic.[43] We are satisfied that was not the case. The prohibition was not oncross-examination, but on leading questions. It would have been perfectly possiblefor defence counsel to have questioned Mr F Milosevic on relevant matters withoutthe use of leading questions. This ground of appeal was simply misconceived.23 See R v Manuel DC CRI-2018-070-1285, 1 October 2020 [Pre-trial applications decision] at[116]–[117].24 R v Manuel DC CRI-2018-070-1285, 29 October 2020 (Trial Minute 12 of Judge Mabey KC)at [3].The Judge's interventions[44] In the context of the challenges to the convictions for drug offending, theprincipal focus of this aspect of the appellants' arguments were interventions the Judgemade during Mr F Milosevic's evidence. We deal with those first. The appellants alsoraised concern with a small number of interventions during the evidence ofDetectives Scott, Waugh and Sowter. The exchanges the Judge initiated on thoseoccasions were manifestly innocuous, and we need deal with them only briefly.Mr F Milosevic[45] Mr F Milosevic complains about seven interventions the Judge made duringhis cross-examination by the prosecutor, principally concerning the interceptedcommunications. His contention is that the Judge reinforced, and indeed appeared tohave preferred, the prosecution arguments.[46] The relevant principles are well established. In Tahere v R, this Court said:25[A] Judge may not intervene so as to cause a reasonable observer to think thecourt partial as between the parties. Interventions may convey that appearancewhere they indicate that the Judge has become an advocate, or that theevidence for a party on a controversial point ought to be believed, or not but the number of interventions matters less than their impact on the parties'cases and any impression they convey to the reasonable observer about thejudge's attitude towards the parties.[47] To similar effect is the following observation of this Court in M v R:26[C]onsiderable caution is required when a judge is considering questioning, inthe course of cross-examination, a defendant who has elected to give evidencein a criminal trial.[48] As that case discusses, s 100(1) of the Evidence Act provides that the Judgemay ask a witness any question that in the Judge's opinion "justice requires".27 In thecontext of a criminal jury trial, in deciding if justice requires it, the Judge should takeinto account:2825 Tahere v R [2013] NZCA 86 at [31] (footnotes omitted).26 M v R [2015] NZCA 183 at [38], citing R v Molioo [2008] NZCA 333; Holland v R [2010] NZCA279; Beckham v R [2012] NZCA 290; and Tahere v R, above n 25.27 M v R, above n 26, at [32].28 At [33].(a) the defendant's right to a fair trial;(b) the separate roles of the judge and jury, with the judge havingresponsibility for questions of evidence, procedure and the law andthe jury having sole responsibility for determining the facts;(c) the need to let counsel pursue their examination and cross-examinationof witnesses in accordance with their professional responsibilities andtheir obligations under the Evidence Act; and(d) the possibility that judicial questioning could cut across a defencewhich a defendant wishes to rely on but which may not be apparent tothe Judge.[49] We consider the matters raised by the appellants in that light.[50] The first intervention complained of took place when the prosecutor suggestedcertain calls and texts were disguised communications about drugs and could not beexplained, as Mr F Milosevic contended, as being about foods of various kinds. In thecourse of his cross-examination the prosecutor referred to a call (introduced by thedefence) in which Mr F Milosevic spoke openly, to a kaumātua, about providingcrayfish:Q. Because we've seen that where there's an innocent purpose to a visityou're happy to talk about it with someone?A. No.Q. When you're talking with the kaumātua about setting up somecrayfish and getting some out and getting them ready it's friendlyFrank, isn't it, correct?A. I don't know what you – what that question, what's that question?Q. When you are talking with the kaumātua –A. I was talking with [Mr Manuel]. Where, where's the kaumātua?Do I have to read that one too?Q. Well it's one of the calls you've put in front of us Mr Milosevic whenyou're talking about crayfish.A. Okay.Q. So all friendly Frank open and clear, isn't it, when you're talking topeople outside the gang?A. Yeah, I don't understand your question.THE COURTQ. What Mr Jenson is saying is that you have introduced phone callswhere you are talking to certain people about such things as crayfishand anyone listening to the call would think that you were beinghelpful and co-operative and willing to deal with whoever you'retalking to about crayfish. Mr Jenson is saying to you but on other callsit's different and he'll explain to you what he means by that I'm sure.A. Explain.CROSS-EXAMINATION CONTINUES: MR JENSONQ. So you accept what his Honour has just said that there are calls whenyou're talking to other people about crayfish you're friendly,co-operative, open?A. Yeah, yeah.Q. But when you're talking with your fellow gang members that's whenthe code and the unspoken stuff kicks in doesn't it?A. No. What code?[51] Later, the prosecutor challenged Mr F Milosevic about another call said to beabout crayfish where the word crayfish was never mentioned. Mr F Milosevicappeared to change his position on whether the transaction might also have involvedwhitebait. When asked about that suggestion he answered "Maybe, yeah, maybe" and"I'd say probably just, just crayfish on this one, yeah. It's so long ago".[52] At this point, the Court intervened:THE COURTQ. Mr Milosevic, do you accept that if you had used the word crayfishand [Mr Manuel] had to use the word crayfish then you would be suretoday what you were talking about?A. Um, most of the time he was coming over he was coming over forcrayfish so I just –Q. No, no, I'm asking you this. If the word crayfish was used, then you'dbe able to say to Mr Jenson: "Oh yes it's about crayfish" because thatword would be there. Does that make sense?A. Yeah.Q. Many of these calls that Mr Jenson is asking about and which the juryhave heard don't use the words crayfish or whitebait they use otherwords or no words at all?A. Yeah, just numbers.Q. So why then when you talk to some people such as a kaumātua upthe coast who needs crayfish do you say "crayfish" and why thenwhen you talk to other people do you not mention crayfish orwhitebait for example?A. Yeah, well, um, that's, um, old, old fella there rung up, I think referringto, um, Sonny, Sonny Rua.Q. No, no, why when you talk to people who you say you're sellingcrayfish and whitebait to why not use those words? That's all I'masking.A. Oh, okay.Q. That's all I want to know.A. Didn't really need to use those words because I already knew whatthey were after.Q. But do you understand that what Mr Jenson is putting to you is thatsometimes words used such as a half or a G in some conversations oran elbuck in other conversations are drug terms, do you understandthat is what Mr Jenson is putting to you?A. Yeah, I understand, um yeah, yeah.Q. Okay, and you're saying he's wrong, those drug terms, some of whichwere mentioned by Detective Sowter are not drug terms when you usethem?A. Well yeah if you look inside the dictionary the word specifically saysa crayfish is a crayfish, a half is a half.[53] Some time later the prosecutor asked if there was a single message in which"whitebait" was referred to in conversations with one particular associate.[54] The following exchange then occurred:[CROSS-EXAMINATION CONTINUES: MR JENSON]Q. Is there a single message where you actually refer to whitebait withMr Pryor?A. Whitebait?Q. Mmm?A. Ah, I dunno, probably no.THE COURTQ. Mr Milosevic I'll ask you again. Why not use the word whitebait ifyou're talking about whitebait. I'm sure that everyone in thecourtroom would be interested in your answer?[55] In our view in those exchanges the Judge is cross-examining Mr F Milosevicand in doing so, is assisting the prosecutor's line of questioning. The Judge does notask just one question, he pursues the point and asks questions that (at the very least)risk conveying the impression that he does not believe Mr F Milosevic's explanation.[56] Mr F Milosevic then gives his answer and the Judge persists with one morequestion. The Judge should not have intervened in this way in what was a key aspectof Mr F Milosevic's defence:A. Yeah, because I already knew what he was after. He come over home.Q. But you do appreciate, don't you, that the prosecution are suggestingthat the reference to an LB is drug talk for a pound of cannabis.You understand that. I just need to make sure that you're aware of thecase that's been put to you?A. Yeah, fully.Q. You're on board with that?A. Yeah.[57] The second intervention concerned a phone call in which the Crown allegedthe Milosevics had purchased methamphetamine from Mr Te Kira but had returned itto him due to its poor quality. Mr F Milosevic claimed that conversation had beenabout beef, not methamphetamine. He said that beef was inside a freezer at the gangpad, which the police should have taken photographs of but did not, or had but hadnot disclosed. The following exchange between the Judge and Mr F Milosevicthen occurred:Q. If you had those photographs of meat in the freezer would me orthe members of the jury be able to determine if the meat inthe photographs was supplied by Mr [Te Kira]? If so how would wedo it?A. Yeah, yous wouldn't but at least it'll go with my, my, um, my storythat I'm telling that that's where the cow was.Q. Yes, but you're complaining about not having photographs of the padfreezer and –A. Yeah, 'cos there were crays in there too.Q. – its contents. I'm asking you would those photographs show uswhere the meat came from?A. Ah, no.[58] Whether or not such photos would show where the meat came from was notthe point. The point was the presence of meat, if photographed, would supportthe general proposition of the family dealing in meat. The Judge was again, enteringthe arena unnecessarily.[59] The third intervention concerned a conversation which the Crown allegedshowed the Milosevics had sought new sources of methamphetamine. Mr F Milosevicsaid that conversation had initially concerned a purchase of cows and had moved onto obtaining a kilo of gold, for the manufacture of gang rings, for $100,000.Mr F Milosevic confirmed to the prosecutor he was in fact talking about gold.The Judge then intervened and asked Mr F Milosevic on two occasions wherethe $100,000 was coming from. Again, this was not the Judge's role.[60] The fourth intervention concerned a conversation in which the Crown saidMr F Milosevic had been organising the harvest of cannabis. Mr F Milosevic rejectedthat assertion and said he had been organising a tangi. Mr Jenson challenged him asto why, according to the conversation, the so-called tangi would have to have beenkept secret. Mr F Milosevic said he did not understand the question. The Judge thenput the proposition to Mr F Milosevic that a tangi was not something "you would wantto keep secret". Mr F Milosevic accepted that. Again, the defence says the Judge wasdoing the prosecutor's job. We agree. The intervention was unnecessary, but harmlessin and of itself.[61] The next intervention complained of occurred during cross-examination ofMr F Milosevic as to the source of the large amounts of cash he appeared to have athis disposal. Mr F Milosevic explained that "when I was working I was earning 120 ka year". The prosecutor then had Mr F Milosevic explain it had been six or sevenyears since he earned that amount of money, that at the time it had been paid into abank account and it had not been hidden under his bed for later use.When Mr F Milosevic suggested he had, in fact, "put a bit away" the prosecutor askedhim rhetorically:Q. Just give us a straight answer for once Mr Milosevic. Are you sayingto this jury that this cash is somehow the source of you drawing moneyout and hiding it under the bed?(Emphasis added.)[62] The exchange continued in like manner, the Judge intervening a short time laterin the following terms:Q. What Mr Jenson is talking to you about is where all the cash camefrom that you and your partner were spending and putting into thebank. You must understand that and I'm wanting to make clear thatyou do understand it. Do you understand that Mr Jenson isquestioning about the money laundering charges?A. Yeah, I understand that.Q. Right.A. But, um, which, which years is he talking about.Q. Well he will tell you that. But I suggest to you that straight answersmight be in your best interest[s].(Emphasis added.)[63] These interventions were unnecessary, beyond the Judge's role as referee, andrisked conveying that the Judge believed Mr F Milosevic was not giving truthfulevidence in his defence.[64] Two further, similar, interventions were criticised. In the first the Judge hadprobed Mr F Milosevic about the amount of money he would make from sellingwhitebait during a good season. The second explored Mr F Milosevic's explanationas to the source of a $30,000 deposit used in the purpose of a property by afamily member. Those questions continued, to a limited extent, the line of challengethe prosecutor had been exploring by trying to clarify the somewhat confusing answersMr F Milosevic was giving to the prosecutor's questions.[65] Mr F Milosevic submits the net effect of these interventions was that the Judgereinforced and drew attention to the Crown position he was unreliable.The interventions were unnecessary, given the significant cross-examination of himover a number of days, and did nothing other than to bolster the Crown case.Before this Court, Mr Nabney, who was also Mr F Milosevic's trial counsel, candidlyaccepted he did not get the feeling at trial the Judge was taking sides and that he didnot object to those interventions during the trial. He said their cumulative effect,however, was not apparent until he reviewed the transcript.[66] The Crown submits the Judge's interventions were unobjectionable.Some were merely to clarify the issues and preserve the focus as Mr F Milosevic hadseemed to be confused at certain stages of the questioning. In particular, some ofthe Judge's interventions assisted Mr F Milosevic to appreciate how the questionsrelated to the allegations against him and gave him the opportunity to clarifyhis position. In particular, the "best interests" intervention in context meant "directanswers to the direct questions from the prosecutor". It did not, the Crown submit,imply the previous answers Mr F Milosevic had given were dishonest.[67] Considering these issues we first observe the task facing the defence was notstraight forward. In a trial such as this, based on allegedly coded interceptedcommunications, the problem is that the "innocent explanation" the defence seeks toadvance tends, as a matter of common sense, to be confounded by the disjunctionbetween that innocent explanation advanced and the circumstances of the multitude ofcommunications in which the alleged code words are used. The repeated use of "codewords" can get to the point where the code words cease to have any particularsignificance, other than evidencing the participants in the intercepted communicationswere concealing their true purpose. The repetition of asserted innocent explanationscan tend to confirm that, particularly where — as here — a defendant faces effectivecross-examination.[68] It is important, in that context, that the Judge does not go beyond their role asreferee and, in effect, put themselves in a position where the jury could well considerthe Judge had the same attitude to the defendant in the witness box as the prosecutordid. Nor, as the Crown submitted, can the Judge's questions properly be characterisedas objectively clarifying for the jury materially confusing evidence.[69] That said, this was a reasonably long trial, and experienced counsel did not atthe time raise any objection as to the propriety of the Judge's interventions.Impressions that can be taken from a close analysis of a transcript may not be thosewhich arise in the court-room itself. Moreover, and as we go on to discuss, the Judge'ssumming up of the Crown case on the drug dealing charges was balanced and fair.He put the gist of the defence case to the jury on those charges on a number ofoccasions clearly and without in any way indicating partiality. He emphasised tothe jury the facts were for them. In that context, we have concluded that thesecriticised interventions did not result in the trial of the defendants on the drug dealingcharges being unfair.Detectives Scott, Waugh and Sowter[70] During re-examination the prosecutor asked Detective Scott whether there wasa trend as to how "club fees" paid by Mongrel Mob members were dealt with.The Detective said that would depend on the "structure of that gang whether it bethe president or someone else underneath them". An exchange then occurred betweenthe Judge and the witness about the various possibilities. Mr F Milosevic objected tothat "intervention" only to draw a contrast. This was the only instance during the longtrial when the Judge intervened during the Crown's evidence in relation to him.That changed when he came to give his evidence. We agree with the Crown'ssubmission this "intervention" was entirely innocuous and did not signal partiality.[71] Mr Tomlinson, trial counsel for Mr S Milosevic and Mr Manuel,cross-examined Detective Waugh about evidence she had given that the last one ortwo digits of a phone's IMEI number could differ, depending on whether the numberhad been taken from the phone itself or provided by the telco provider.29 He suggestedthat difference could create problems for identifying a particular phone. The Detectiverejected that proposition, saying she was "happy that that's the same IMEI number".29 An "International Mobile Equipment Identity" (IMEI) number is a 15-digit number unique to eachdevice, analogous to a phone's fingerprint.Mr Tomlinson replied, "I'm pleased that you're happy detective thank you", in effectcutting the officer off. The Judge then addressed Mr Tomlinson, noting the Detectivewas basing her opinion on her experience and expertise. The Crown chose not tore-examine the Detective. The Judge himself returned to the point, confirming withthe Detective her evidence was based on her experience of the same phone having twoIMEI numbers because the last two digits differed.[72] The defence argues the Judge undermined the cross-examination. The Crownresponds that the Judge elucidating the basis for the Detective's evidence wasa legitimate course for him to take. The Judge did ask questions the prosecutor couldhave asked in re-examination. But those questions allowed the Detective to clarifythe basis of her opinion. To that extent the questions were favourable to the Crown,but not impermissibly so: a Judge's questions clarifying evidence may incidentallyhelp or hinder a party's case.30[73] Mr Manuel complains about a minor comment by the Judge duringMr Tomlinson's cross-examination of Detective Sowter. Mr Tomlinson noted it wasaccepted a phone number was mistakenly attributed to Mr Manuel's phone, when infact it was an automated Vodafone number. When asked how he knew thatthe Detective said he would have to check an email chain which, he thought, had comedirectly from Vodafone. The Judge intervened to ensure the email in question wouldbe made available to the Court and the jury. The complaint was the Judge actedpartially by circumventing the process provided for the admission of hearsay evidenceunder the Evidence Act.[74] The Crown says that exchange merely conveyed the Judge's preliminary viewthat the email could be admissible as a business record.31 To do so did notcommunicate bias. We agree. Moreover, the significance of the point, as the Crownsubmits, lay in the original police error, rather than the way in which the error hadbeen confirmed.30 Tahere v R, above n 25, at [28]–[30].31 Section 19(1)(c) of the Evidence Act allows a hearsay statement contained in a business record tobe admissible if the Judge considers that "undue expense or delay" would be caused if the personresponsible for the creation of the record was required to be a witness.The Judge's summing up[75] A Judge's summing up must be fair and balanced. It must identify thefundamental facts in issue, be balanced in the treatment of rival contentions and leavethe jury in no doubt the facts are for them and not for the Judge.32 A Judge must putforward the defences an accused has properly raised. Not every argument put bycounsel needs to be relayed to the jury, and a Judge need not play down the prosecutioncase in order to give artificial balance to the defence.33 In terms of that balance,this Court has observed there will often be greater focus on the Crown case, reflectingthe fact the prosecution bears the burden of proof and leads most of the evidence.34In Giles v R this Court observed:35[47] It is very rare indeed for an appeal to be allowed on the basis of anunbalanced summing up. Given the oral nature of the process, detailedanalysis of the transcript of what the Judge said has the tendency toover-emphasise the significance of any infelicities. As well, juries can beexpected to approach their task conscientiously and in particular to form theirown views on factual issues. This after all is what juries are told to do byjudges – and in a way which is almost always far more explicit andunequivocal than the expression of the alleged judicial preference for one sideor the other. As well, judges are entitled, within limits, to express a view onthe merits of a case or on some of the issues of fact which the jury mustaddress. [76] Taken overall, the adequacy of a Judge's summing up must be assessed inthe context of the trial as a whole, the issues that arose, and the case againsteach defendant.[77] That context for our purposes can be best understood through the lens ofthe way the prosecution and defence dealt with the Milosevics and the Crown chargesin their closing addresses to the jury.[78] The prosecution structured their closing on what they described as the three"arcs" of the Crown case: the evidence of (i) methamphetamine dealing and(ii) cannabis dealing as reinforced by (iii) Ms Clay's evidence of significant fundsavailable to the Milosevics and their partners from sources Ms Clay could not identify,32 Keremete v R CA247/03, 23 October 2003 at [18].33 R v Accused (CA125/87) [1988] 1 NZLR 422 (CA); and R v Hoko (2003) 20 CRNZ 464 (CA).34 Guthrie v R [2011] NZCA 202 at [14].35 Giles v R [2010] NZCA 254 (footnote omitted).that is "unexplained funds". The presence of those unexplained funds supported theCrown's case of commercial dealing in methamphetamine and cannabis. Within thatoverall approach, the prosecution took the jury through the evidence relating to eachof those three "arcs", principally by reference to intercepted communications in thecase of the first two and based on Ms Clay's analysis as regards the unexplained funds.The unifying proposition for the prosecution involved the evidence of drug dealingand contrasting what were the known, legitimate, sources of income — limited thoughthey were — with the evidence of the Milosevics' access to significant funds whichwere spent supporting a lifestyle that was, put simply, beyond their legitimate means.[79] For their part, the defence counsel emphasised the lack of any "real" evidenceand the "circularity" of the Crown case. Notwithstanding the long period ofsurveillance, hardly any illicit drugs were found when the Operation was terminated.The intercepted communications themselves proved little: they only had significanceon the basis of the police's assertions — without direct evidential support — that thedefendants were speaking in code about drugs. There was a similar circularity in themoney laundering charges: the Crown argument seemed to be the cash was evidenceof the drug dealing and the drug dealing explained the cash. Within that framework,defence counsel also took the jury through relevant intercepted communicationsemphasising their proposition the evidence was insufficient to support guilty verdicts.[80] The Judge approached his summing up in what is now the established orthodoxmethod. The defence challenges to the summing up focus on the part where the Judgeaddresses the jury on the elements of the charges, the evidence relating to thosecharges and what the prosecution and the defence say the jury may draw fromthat evidence.[81] The Milosevics and Mr Manuel all criticised the Judge's summing up as havinggiven unfair emphasis and support for the Crown's case and for underminingthe defence's case. They expressed that general proposition in slightly different ways.[82] The proposition for Mr S Milosevic and Mr Manuel was that the Judge'smethod — which they described as summarising the Crown case, then summarisingthe Crown case for each charge, followed by the defence case for each charge before,finally, referring back to the Crown case for some of the charges — was neither fairnor balanced. A similar proposition was advanced by Mr F Milosevic, namelythe Judge had given the overall impression he considered the Crown case superior toanything that had been offered on behalf of the defendants. Ms Tawera and Ms Rakiendorsed those general criticisms.[83] We do not accept those propositions. We note that not one of these experiencedcounsel raised any concerns with the Judge at the time as to the adequacy or fairnessof his summing up: if, as is asserted, such an overall impression of partiality was given,it would be surprising if the point had not been raised. Moreover, we do not thinkthose propositions are a fair characterisation of this part of the Judge's summing up.The Judge began his discussion of the individual charges and the evidence relating tothem at [35] of his 288-paragraph summing up. He finished that analysis at [274].He first gave a very brief overview of the Crown case ([37] to [39]) before goingthrough all of the charges, starting with charges 5, 56, 58 and 59 involvingmethamphetamine the Crown alleged the Milosevics obtained from Mr Te Kira.The approach he took in doing so was reflected throughout the balance of this part ofhis summing up.[84] The Judge began with the Crown propositions ([40] to [49]), then turned tothose for the defence: by Mr Nabney ([50] to [53]), Mr Tomlinson ([54] to [60]), andMr Simperingham, counsel for Me Te Kira ([61] to [67]). Our assessment is thatthe Judge fairly presented the defence cases. He did comment on some aspects ofdefence submissions, particularly where the defence had pointed to evidence they saidshould have been, but was not, before the jury. That is a not uncommon defencesubmission. It is commonplace, and appropriate, for the Judge to advise the jury notto speculate about evidence that is not before them, nor as to the reasons why thatmight be.36[85] Hence, in response to Mr Tomlinson's submission that little was known aboutthe people alleged to be on the other side of the Milosevics' drug dealings, the Judgesaid that submission needed to be treated with "a degree of realism" and "common36 See for example R v Smith [2008] NZCA 371 at [25]–[28].sense". Was it likely, the Judge asked, that the police would be able to get evidencefrom someone who had purchased drugs from an alleged drug dealer by incriminatingthemselves? Importantly, the Judge went on:[57] But the most important thing is this. The defence rightly say to you,you do not guess and speculate and I have said that to you but it cuts bothways. You do not guess and speculate about what might have been here ifthe police had have done something or got this witness to say something ordone something differently. Because that is in the realms of guess workas well. Your decision is based upon the evidence you do have and yourassessment of whether on that evidence the Crown has satisfied you beyondreasonable doubt.[86] In our view, there can be no criticism of the approach taken by the Judge.Inevitably, there was more prosecution evidence for the Judge to refer to than defenceevidence. That does not mean the summing up was unbalanced, nor that the Judgewas denigrating the defence case as a matter of overall impression.[87] Moreover, the Judge emphasised in plain terms on a number of occasionsthe facts were for the jury to decide and that they needed to be sure in order to convict.[88] For Mr F Milosevic, Mr Nabney drew our attention to two particular instancesof comments made by the Judge which supported his contention as to the overallimpact of the summing up. When the Judge began his discussion of the cannabiscultivation charges, which he did after addressing a number of the methamphetaminecharges, he observed:[82] The Crown case is that in addition to the methamphetamine divisionof the family enterprise there was a cultivation and distribution of cannabisdivision as well. [89] That was the Crown case, and we do not see why the Judge can be criticisedfor so explaining to the jury. Similarly, the Judge summarised the prosecution'sresponse to Mr F Milosevic's evidence that conversations said by the Crown toinvolved cannabis did, in fact, involve crayfish. The Judge observed:[107] Mr [F] Milosevic says in his evidence it was about crays but thatis not a word that came up on the discussions and that comes back toMr Jenson's submission if it is a spade why not call it a spade but if it is a drugyou might want to be careful about that.[90] Again that is a fair statement of a Crown submission made on more than oneoccasion and was, we sense, inevitable given Mr F Milosevic's evidence. The juryhad, by then, seen and heard that evidence for themselves and, as jurors, were the oneswho were to assess its significance, as the Judge repeatedly emphasised.[91] We are accordingly not persuaded that the appellants' criticisms of the Judge'ssumming up, when taken alone or considered together, can be sustained. Accordingly,we dismiss each of the appellants' challenges to their convictions on drug offendingcharges.Money launderingOverview[92] As outlined, the Milosevics and their partners challenge their moneylaundering convictions on the basis the Judge erred when he:(a) declined their application for severance;(b) failed to exclude Ms Clay's evidence and in the way he intervenedwhilst Ms Clay was giving her evidence, particularly whencross-examined by Ms Webby;(c) granted the Crown's application to amend the wording of the moneylaundering charges after the Crown had closed its case; and(d) summed up in respect of those charges.[93] As always, the determinative issue on an appeal against conviction is notwhether the Judge made what can be said to be errors or mistakes on one or moreoccasions. Rather the question is whether, taken overall and making a legally robustassessment, the appellant received a fair trial.37 Hence, and by way of example,evidence may have been admitted by the Judge erroneously, but it is the effect of that37 Criminal Procedure Act, s 232(2)(c) and (4).evidence in the context of the trial as a whole that determines whether a convictionappeal will succeed, not the mere fact of that error.38[94] Similarly, and of relevance here, a decision not to grant severance may be onewhich, on a pre-trial appeal could be reversed.39 But, by the same token, whenchallenged in the context of an appeal against conviction the assessment may be thatthe fair trial risks which can accompany the trying of multiple charges at once had notin fact eventuated, so that the appellate court could properly find the resultingconvictions were not unsafe.[95] Bearing that in mind, we now consider the various grounds of appeal. We firstsummarise the Judge's decisions, interventions and parts of his summing up at issue,before turning to our assessment.The severance decision[96] When charges were first laid in March 2018 only two involved moneylaundering: one each against Ms Raki and Ms Tawera. Both charges were laid on aparticular and not representative basis. Both were expressed similarly, save as to dates,namely that:(a) Ms Raki had, between 24 November 2015 and 26 May 2017 atKawerau, jointly offended with Mr F Milosevic in respect of cash inexcess of $140,000 that was "the proceeds of a serious offence" byengaging in money laundering transactions, knowing that all of the cashwas the proceeds of the serious offence.(b) Ms Tawera had, on 8 March 2017 at Kawerau, jointly offended withMr S Milosevic in respect of funds of $120,000 that was "the proceedsof a serious offence" by engaging in money laundering transactions,knowing that all of the funds was the proceeds of the serious offence.38 See Condon v R [2006] NZSC 62, [2007] 1 NZLR 300 at [78]; and Ogden v R [2016] NZCA 214at [24] and [27].39 Criminal Procedure Act, ss 217(2)(f) and 221.[97] There are obvious difficulties with the very general wording of both thoseparticular charges:(a) in Ms Raki's case, given the period of time involved and the necessaryimplication of multiple transactions;(b) notwithstanding the "jointly offended" wording, neither of theMilosevics were at that point charged with money laundering; and(c) less obviously, the terms of the charges did not account for thepossibility, expressly provided for in s 243(2) of the Crimes Act 1961,that the defendants knew merely "part" (rather than "all") of the fundsinvolved in a money laundering transaction was the proceeds ofan offence.[98] Around the same time as those charges were laid, the Commissioner of Policecommenced civil proceedings against the Milosevics and their partners under theCriminal Proceeds (Recovery) Act 2009. Initially without notice restraining orders,then on-notice restraining orders and finally "value protection" sale orders were madeagainst various properties.40 We do not know whether the final stage of the process— the making of forfeiture orders — has yet been reached. As best as we can tellthose proceedings and orders were based on evidence from Detectives Wattand Shallcrass.[99] Detective Shallcrass also provided a formal written statement in support of themoney laundering charges. The Detective's analysis covered the couples' financialaffairs between January 2011 and September 2017. As is customary for proceeds ofcrime proceedings, the point of the evidence was to establish, based on records offinancial and other transactions, that there was an unexplained gap betweenthe couples' recorded income and expenditure which, as a matter of inference, couldonly be explained as having come from ill-gotten gains.40 See Commissioner of Police v Milosevic [2019] NZHC 202; Commissioner of Police v Milosevic[2019] NZHC 1554; and Commissioner of Police v Milosevic [2020] NZHC 2164.[100] The Crown had signalled in a trial callover memorandum in November 2018its intention was to rely on additional financial evidence at the trial of the moneylaundering charges. That evidence was provided by Ms Clay in July 2020 based on,as we understand it, an analysis also prepared for the civil proceedings. Around thesame time, the Crown informed the Milosevics they would also face money launderingcharges along with Ms Raki and Tawera.[101] Before we turn to the Judge's decision declining severance, a brief explanationof the relevant aspects of the civil recovery of proceeds regime is necessary.Section 3(2) of the Criminal Proceeds (Recovery) Act describes the purpose ofthe regime the Act establishes as being to:(a) eliminate the chance for persons to profit from undertaking or beingassociated with significant criminal activity; and(b) deter significant criminal activity; and(c) reduce the ability of criminals and persons associated with crime orsignificant criminal activity to continue or expand criminal enterprise;and(d) deal with matters associated with foreign restraining orders andforeign forfeiture orders that arise in New Zealand.[102] In Wu v Commissioner of Police, this Court explained the types of forfeitureorders that may be made under that Act:41[3] To eliminate the chance of profiting from criminal activity, the Actprovides two main types of civil orders forfeiting respectively tainted assetsand property more generally. The first, an assets forfeiture order, must bemade by the High Court where it is satisfied on the balance of probabilitiesthat the assets in question are tainted.42 Assets are tainted where they havebeen acquired or derived wholly or in part from significant criminal activity.43The owner of those assets need not have been responsible for, or even awareof, that activity. The second, a profit forfeiture order, must be made wherethe High Court is similarly satisfied the owner of the assets in question hasknowingly benefited from significant criminal activity, even though thoseassets are not themselves tainted.44 41 Wu v Commissioner of Police [2022] NZCA 65 (footnotes in original).42 Criminal Proceeds (Recovery) Act 2009, s 50(1).43 Section 5(1).44 Section 55(1).[103] So the standard of proof for forfeiture is the (civil) balance of probabilities.For the regime's provisions for without and with notice restraining orders, the standardis the lower requirement of being satisfied on "reasonable grounds".45 We also notethe owner of assets to be forfeited as "tainted" need not be aware of the taint.46Nor does there need to have been a conviction for the relevant significant criminalactivity.47 It is in that context that the evidence provided by Detective Shallcrass andMs Clay on the money laundering charges was originally prepared.[104] But in a criminal trial the context is importantly different to that of civilforfeiture proceedings.[105] Not only is satisfaction of the elements of the charges required to meet thecriminal standard of proof beyond reasonable doubt, but also the Crown must establishto that same standard the funds being laundered were the proceeds "of an offence" andthe defendants knew that as alleged here, or as is also possible, were reckless as to thatpossibility.48 We note for completeness, however, that the "offence" from which theproceeds are said to have derived need not have resulted in a charge or a conviction.49[106] On 15 September 2020, a week before trial, the Crown laid a revised CrownCharge Notice. The particular charges Ms Raki and Ms Tawera had individually facedwere replaced by a total of five, representative, charges:(a) Mr F Milosevic and Ms Raki jointly faced two representative charges.The first related to "46 individual cash deposits" made between1 December 2015 and 28 March 2018 into accounts controlled by them(neither the amounts deposited, nor the depositors were particularisedin the Charge Notice). The second related to specified cash purchases,particularised in schedule Y of the Charge Notice, made by thembetween 18 February 2016 and 20 December 2016, in each caseknowing all of the funds were the proceeds of an offence.45 Criminal Proceeds (Recovery) Act, ss 24 and 25.46 Wu v Commissioner of Police, above n 41, at [44].47 Criminal Proceeds (Recovery) Act, ss 15 and 16.48 Crimes Act 1961, s 243(2).49 Section 243A. Whilst that is also the position in the civil context, the implications of that fact areless significant in the criminal context than in the civil.(b) Mr S Milosevic and Ms Tawera jointly faced three representativecharges, all relating to the period 1 December 2015 and 28 March 2018,comprising electronic transfers from Ms Anita Crosby; cash depositsfrom Ms Anita and Ms Symphony Crosby; and specified cashpurchases, in each case again knowing all of the funds involved werethe proceeds of an offence. The Crown case against them was that theyjointly used "a mechanism" to procure Ms Crosby to makethe electronic transfers and for Ms Crosby and her daughter to makethe cash deposits through their bank in Hamilton.[107] As can be seen, the period of alleged money laundering offending was widerthan that of the alleged drug offending. The drug offending in respect ofthe Milosevics was alleged, across 35 charges, to have occurred betweenNovember 2016 and March 2018: although all but six of those charges involvedoffending after the Operation commenced in August 2017. Of those six chargesinvolving pre-Operation allegations:(a) One was laid against each of the Milosevics jointly for the cultivationof cannabis between November 2016 (nine months beforethe Operation commenced) and April 2017. The jury acquitted them ofthat charge.(b) One was laid on a representative basis against Mr F Milosevic forsupply of methamphetamine to a particular individual betweenMay 2017 and February 2018. The jury acquitted him of that charge.(c) Four were laid on a representative basis against Mr S Milosevicinvolving the sale of cannabis and methamphetamine after July 2017(a month before the Operation commenced). Mr S Milosevic wasconvicted of those charges.[108] Therefore, the jury only convicted Mr S Milosevic of drug offending fromJuly 2017, and Mr F Milosevic from August 2017.[109] That is of some significance. Ms Clay analysed a range of source material,mostly obtained through production orders, relating to the defendants' financialaffairs. She concluded that there was a "gap" of some $510,000 between known andapparently legitimate sources of income and recorded expenditure. The Crown caseat trial proceeded on the general basis that total unexplained amount was the subjectof the money laundering charges as the proceeds of the charged drug offending.As the Crown put it in closing: it's all of the evidence in the trial that points in that direction, doesn't it,and in fact having gone through all that evidence again, reviewed it in detailover the last day and a half at least, we might consider ladies and gentlementhat we're now at the point where we can safely drop the term "unexplained"from this cash source and simply to conclude that to the extent that we can'tidentify the cash source from our assessment of the evidence, there's clearlyonly one source for that money, the proceeds of this criminal offending, thisdrug offending.What there is evidence of is of significant drug dealing for profit which doesexplain and is consistent with the amount of unexplained cash which bringsus to those money laundering charges, ladies and gentlemen and we start withcharge 64 in relation to Ms Tawera and Mr Milosevic.(Emphasis added.)[110] But as Ms Clay's cash availability statements show, that simply could not havebeen the case.[111] Rather, the source of a considerable part of the unexplained amount can be seenas reflected by transactions, whether cash deposits, bank transfers or cash purchases,which occurred before the Operation began and before the bulk of the charged drugoffending occurred.[112] It is, because of the way the evidence was presented at trial, difficult to beprecise as to amounts. However, in the case of Mr S Milosevic and Ms Tawera, theirmoney laundering charges are based on cash deposits or bank transfers initiated bythe Crosbys at, the Crown alleged, their direction and their own cash purchases.The general proposition would appear to have been that the Crosbys were used as aconduit whereby cash generated by drug offending could covertly find its way toMr S Milosevic and Ms Tawera and, hence, to — as the Crown would put it — the"family business". By reference to the list of such transfers and deposits contained inMs Clay's evidence, a simple arithmetical calculation shows that by the time theOperation commenced, of a total sum of $158,000 involving the Crosbys, some$106,000 had already been "laundered". In the case of cash purchases all but a smallnumber took place after the start of the Operation, that is, contemporaneously with thealleged drug offending.[113] The position with the money laundering charges faced by Mr F Milosevic andMs Raki is not as clear. As noted, as regards the deposits alleged to constitute moneylaundering transactions neither the amounts nor the identities of the depositors werespecified in the Crown Charge Notice. Of the 46 deposits referred to, the cashavailability statement would appear to show that some 34 had taken place before thestart of the Operation, and the amount of those 34 deposits would appear to beapproximately $160,000 of the total of $164,000. For their cash purchases, schedule Yshowed five of the eight cash purchases had taken place before the start ofthe Operation. That is, some $99,000 of the $104,000 involved in those purchases hadbeen spent before the start of the Operation.[114] So, of the total money laundering charges involving $510,000 the relevanttransactions involving at least $205,000 had taken place before the Operationcommenced. If our analysis of the cash availability statement is accurate, the moneyinvolved would come to $365,000.[115] As can be seen, the money laundering allegations were predominantly targetedat transactions that occurred before the conduct comprising the drug offendingallegations. Whether those complexities were understood by defence counsel inSeptember 2020, when the Crown reformulated the charges, is unclear.[116] Notwithstanding that, in response to that reformulation, the couples applied forthe five representative charges to be severed. That application was unsuccessful andthe trial proceeded on the basis of the five representative charges alleging all ofthe funds involved were and were known to be the proceeds of criminal offending.5050 R v Manuel, above n 22, at [7].[117] The Milosevics argued that the delay in laying those charges, just one weekprior to the trial, itself created unfairness for them. Up till the Crown's advice in lateJuly 2020, they had not thought they were going to be charged for money laundering.All four argued there simply had not been enough time to properly review and respondto Ms Clay's lengthy and complex evidence. For Ms Raki, Ms Webby emphasisedthe fact she had been unable to retain expert accounting advice in the time available.Ms Raki and Ms Tawera also pointed to the prejudice for them of facing a trialinvolving drug offending with which they were not charged.[118] The Judge was not persuaded the timing of either the presentation of Ms Clay'sevidence or the laying of charges against the Milosevics made severance appropriate.The Judge reasoned all defendants had from the outset been aware the trial ofthe charges against them would involve an analysis of their financial dealings.51[119] As the Judge put it:[76] The Crown case against all defendants is that they are involved in drugdealing. Drug dealing produces money. For the four defendants now thesubject of money laundering charges there was always going to be evidenceof their financial situation.[77] In defending the money laundering charges Ms Tawera and Ms Rakiwould need to confront that evidence.[120] The Judge was also satisfied that the Crown evidence disclosed prior toMs Clay's analysis becoming available — that is the intended evidence ofDetective Shallcrass — provided a basis for responding to the charges of moneylaundering. The Judge reasoned:[86] The response to the elements of a charge of money laundering can bea challenge as to whether a given defendant dealt with property, whether itwas the proceeds of crime or as to mens rea involving belief or recklessness.[87] All of those challenges were open to Mr [F] Milosevic on the intendedevidence of Detective Shallcrass regardless of whether the formal elements ofa money laundering charge were at issue in the trial. [121] That is the case. As the Judge observed later, to take the position there wouldbe no "active defence" ran the risk of falling foul of counsels' cross-examination51 Pre-trial applications decision, above n 23, at [71].duties.52 Failure to cross-examine may result in a judicial direction to the jury as tothe weight they should attach to any unchallenged evidence.53[122] But we think it unlikely the defence application was premised on a completeinability to challenge Ms Clay's evidence, rather that to do so adequately — in thecontext of fair trial rights — justified severance.[123] The Judge went on to say:54 As noted, one way or another [Mr F Milosevic] was required to respond tothe Shallcrass evidence to avoid a Crown submission, and judicial direction,that the unchallenged evidence would justify an inference that the unexplainedcash source was the proceeds of drug dealing.[124] Whether or not the Judge could go as far as that anticipated judicial directionis a matter we return to when considering the challenges to his summing up.[125] As for the difficulties presented by alleged complexities of Ms Clay's evidencecompared to that of Detective Shallcrass, the methodology adopted by the witnesseswas the same. That is, it was just a matter of arithmetic. That Ms Clay was anaccountant did not change that. The Judge went on:[97] Furthermore, no expert can address the elements of money laundering.That is for the defendants who are in the best position to provide an innocentexplanation for what is said to be an unexplained cash source. Only they knowwhere the funds came from.[126] More generally, the Judge reasoned concurrent trials of the drug and moneylaundering charges was the orthodox approach:[106] To try the money laundering allegations separately the Crown wouldbe required to bring evidence to prove beyond reasonable doubt thatthe property the subject of those charges was the proceeds of an offence.That would require recalling a very significant proportion of the evidencerelating to the drug dealing allegations faced by Frank andSlobodan Milosevic.[107] The Crown would be required to effectively re-run the drug dealingtrial against them both.52 At [91], citing Browne v Dunn (1983) 6 R 67 (HL). See further Evidence Act, s 92.53 See Farmer v R [2019] NZCA 430 at [16]–[17]; Khalid v R [2020] NZCA 489 at [36]; andSemmons v R [2021] NZCA 135 at [27]–[30].54 Pre-trial applications decision, above n 23, at [87].[127] That reality, the Crown submits, demonstrated the interests of justice wouldnot be served by severance.55Interventions — cross-examination of Ms Clay[128] Ms Webby's cross-examination of Ms Clay can be seen to reflect two aspectsof the money laundering charges as originally laid:(a) First, that they were particular, not representative, charges.The replacement of the particular charges with representative chargesaffected the Crown's task. It now no longer had to prove particularcharges, noting again the difficulty for the Crown in that context createdby the wording of a single particular charge against Ms Raki coveringan 18-month period. The Crown was only required to satisfy the jurybeyond reasonable doubt that the offence had occurred at least onceduring the representative, 27-month, period.(b) Secondly that the Crown asserted each of the defendants knew "all" ofthe funds involved in a particular transaction were the proceeds of anoffence. It remained the position, until the amendment of the wordingof the charges once evidence had concluded, that on at least oneoccasion, or on each occasion — if the jury was satisfied there weremore than one — the defendants knew "all" of the allegedly launderedfunds were the proceeds of an offence. On that basis, if the jury couldnot be sure the defendants knew all of the cash involved in the allegedmoney laundering transactions were proceeds of offending, the chargeswould not have been made out.[129] In that context, Ms Webby repeatedly put to Ms Clay that particulartransactions alleged to involve money laundering could as easily have involved — asto all or part — funds from a legitimate source.55 At [108].[130] It was not clear to us, either from the written or oral submissions, whetherthe significance of the change in basis of charging from particular to representativehad informed that aspect of Ms Webby's cross-examination. Whether it did or did not,that does not in our view undermine her core objection to the Judge's interventions.The gist of the Judge's criticised interventions was to point out the obvious answer toMs Webby oft-repeated proposition was that Ms Clay had no way of knowing one wayor the other.[131] Ms Webby's submission can be considered by reference to one example of thattype of intervention. Ms Webby questioned Ms Clay about deposits of $240 in notesand $603.50 in coins into a bank account belonging to Mr F Milosevic and Ms Raki'steenage child in December 2015. Ms Webby put to Ms Clay the proposition thosedeposits represented savings in a piggy bank which, in Ms Webby's words, "would bea legitimate source of cash being a piggy bank, wouldn't it?". Ms Clay did not agree,saying that "maybe it was money in a piggy bank, however, it had to come fromsomewhere". The Judge intervened:Ms Webby, I have to interrupt you again. They could fall out of the sky.That's the point. The witness is saying: "I have attributed cash to the analysisfrom an unknown source." You're saying "assume", you're saying to thewitness "assume" which is all she can do is that [sic] the two deposits in25 August '15 and December '15 were from the child's piggy bank where hemight have been cutting lawns, doing firewood, he might have been doing anynumber of things and he's gone and put money in the bank or his mum has.All those things are possible but the witness can't give you an indication as towhere the source came from. She's simply saying: "I don't know what thesource is" and you're saying: "Well it could have been a legitimate source."She would answer: "Yes it could have been but it might not have been either."So there's no point in asking the question [132] On appeal, Ms Webby submits in those remarks the Judge adopted the Crown'sposition, and the intervention did not allow an alternative hypothesis to be put beforethe jury. The Judge effectively answered questions for the witness. The propositionthat Ms Clay was not to know about various possibilities as to the source of the monies,which the Judge appeared to accept, undermined the defence Ms Webby was building,namely that Ms Clay could have and should have made inquiries as to wherethe money had come from, but she did not. Ms Webby argued that, taken further, thatproposition effectively "reversed the onus of proof" because it required the defence toprove the various possible legitimate sources of money because Ms Clay was "notto know".[133] The Crown submits all the "interruptions" made by the Judge during Ms Clay'sevidence simply reflected the nature of the cross-examination, which involved detailedquestions about individual transactions and their supporting documentation. It wasunsurprising the Judge would intervene to clarify where necessary. Further, the Judgerightly considered there was no value in Ms Clay's answers as to the hypotheticalsources Ms Webby advanced.[134] We agree that, in general terms, Ms Clay's evidence was based on her reviewof various banking and other transaction documents obtained pursuant to productionorders, and was carried out on an arithmetic basis. As was explained to the jury, whereMs Clay identified funds potentially having a legitimate source, she put them into whatshe called "the money box". Then Ms Clay debited the money box with allthe expenditure she had, in the same way, identified. A deficit at the end of it meantthe source of proven expenditure was "unexplained". That is, we note, unexplainedto Ms Clay by the information she was relying on.[135] Ms Clay herself was not, however and as the Judge realised, in a position togive evidence as to whether or not that unexplained source was a crime.[136] The nature of the Judge's interventions during Ms Webby's cross-examinationof Ms Clay reflected the view he took in his consideration of the defence applicationfor severance. As set out at [125], and repeated here, the Judge said:[97] Furthermore, no expert can address the elements of money laundering.That is for the defendants who are in the best position to provide an innocentexplanation for what is said to be an unexplained cash source. Only they knowwhere the funds came from.[137] That remark may in fact be true. However, it takes on a legal significance inthe context of the Judge's interventions and his summing up. Put simply, just becauseMs Clay's evidence is that she does not know of a legitimate source of funds does notnecessarily mean those funds are the proceeds of an offence. Furthermore, the greaterthe extent to which Ms Clay acknowledges that fact, and more so if she recognisesrelevant circumstances are consistent with an innocent explanation, then the greater— fairly obviously — the difficulty there is for the Crown proving the funds arethe proceeds of an offence and that the defendants knew "all" of the funds involved inone or more of the impugned transactions were so derived.[138] Seen in that context, we think there is force in Ms Webby's submission that theJudge's interventions during her cross-examination of Ms Clay did unfairly underminethe defence case.The late amendment of the charge[139] As first laid by the Crown and as reformulated by the Crown in the CrownCharge Notice of 15 September 2020, the money laundering charges were laid onthe basis the appellants knew that "all of the funds" involved in the alleged moneylaundering transactions were the proceeds of an offence.[140] After all the evidence was concluded on 2 November, and prior to theprosecution and defence closings, the Judge discussed his question trail with counsel.The Judge phrased that question trail based on the Crown's description so that the juryhad to be satisfied "all of the funds" involved in a particular transaction on a givenoccasion were the proceeds of an offence.[141] When the question trail was under consideration, defence counselMr Tomlinson sought reinforcement that proof would be required on that basis.[142] The Judge was not sure why the Crown had not adopted the wording ofthe section "all or part" but said that it raised potential complications.56 It wasconceivable the jury could be compelled to acquit notwithstanding a conclusion thatpart of the funds involved in an individual transaction were the proceeds ofan offence.57 As the Judge recorded, Mr Tomlinson said "that the Crown had electedto use the word all and could not now deviate from it".58 At that point the Judge wouldappear to have observed that he could see "no prejudice at all" to the defence if56 R v Manuel [2020] NZDC 22535 at [12].57 At [13].58 At [15].the Crown now applied to expand the wording to all or part.59 Over the defenceobjections the Crown did so, and the Judge granted that application.60The Judge's summing up[143] In summing up the Judge noted the Crown case on the money launderingcharges relied on inferences. He explained that if the jury accepted the Crown casethe Milosevics were drug dealing, they could look at the money in the bank accounts,the cash purchases, the couples' means, and the absence of any income, to inferthe cash relied upon in the money laundering charges "has come from drug dealing".[144] In taking the jury through each of the charges in detail, the Judge discussedfirst those laid against Mr S Milosevic and Ms Tawera, and then those againstMr F Milosevic and Ms Raki.[145] The charges against Mr S Milosevic and Ms Tawera alleged money launderingoccurred between 1 December 2015 and 28 March 2018. He said the 1 December2015 date was "significant" but did not at that point explain, however, why it was asignificant date, nor that it was over a year-and-a-half before the Operationcommenced.[146] As regards the Crosby money, the Judge noted the jury did not actually haveto prove, in a strict legal sense, what the "offence" from which the proceeds are saidto have derived was, nor the identity of the offender. He said:[232] This is where you will bring your attention to a number of things todo with this charge. We know the money came into the bank account fromMs Crosby but for you to determine this issue of whether it is all or part froman offence you are going to have to get to grips with the entire Crown caseyou would have to be satisfied beyond reasonable doubt that the Crosbys werethe pipeline for drug dealing money to come into bank accounts (Emphasis added.)[147] Addressing the attacks on Ms Clay's evidence, in particular that fromMr Tomlinson as to why she did not enquire with businesses who received cash from59 At [16].60 At [18].Mr S Milosevic and Ms Tawera, the Judge said it was for the jury to decide "whetherthe challenge to Ms Clay was effective in undermining her reliability to the point thatyou do throw the baby out with the bath water as Mr Jensen cautioned you not to do".He then reminded the jury of aspects of Ms Tawera's defence, in particular noting shehad only received a fraction of the Crosby money, and was not herselfa Mongrel Mob member.[148] The Judge then turned to the charges against Mr F Milosevic and Ms Raki.He referred in particular to Mr Nabney's submission that the money laundering periodexceeded the intercept period. The Judge said, which we set out more fully below,61that there was "nothing in that" submission. The Judge also referred to Ms Webby'ssubmissions and addressed her challenges to Ms Clay's evidence, and remindedthe jury of the Crown submission that "[Ms Clay] may have got a few things wrong inher analysis but she did not put the money in the bank She did not buy the van.She did not hand the money over for the Raptor. Those payments are a matter of fact,the issue is where did they come from".Our assessment[149] We consider it unfortunate that the Crown elected to lay money launderingcharges against the Milosevics at such a late stage. By the time they were introducedcounsel for the Milosevics would have been in the final stages of preparing for alengthy drugs trial. The fact that they were required at such a late stage to confrontadditional charges that contained different elements to the drugs charges imposed aheavy burden on defence counsel. Given the lateness of the application we considerthe Judge would have been justified in requiring those charges to be severed if theCrown wished to proceed with them. As the charges against the Milosevics were laidjointly with their respective partners, a decision to sever would necessarily haveapplied to Ms Raki and Ms Tawera as well.[150] The introduction of the charges was complicated by the fact that the bulk ofthe money laundering transactions pre-dated the alleged drug offending that was thesubject of charges to be determined at the trial. The Judge was required to tell the jury61 See below at [155].that to convict on any of the money laundering charges they had to be sure that thecash involved was from the proceeds of an offence. It was, of course, enough for thejury to convict on the basis of at least one money laundering transaction alleged tohave taken place after the Operation commenced. The drug offending as charged —relating in the most part to post-Operation conduct — was clearly relevant to themoney laundering charges.[151] In our view, however, the Judge had to go further. He was required advisethe jury that, in order to convict on the basis of a money laundering transaction thatoccurred before the commencement of the Operation, they had to be sure the funds inquestion were derived from other offending with which the defendants have neverbeen charged.[152] The Crown did not make this point clear when closing to the jury. As notedabove at [109], the Crown said in closing: it's all of the evidence in the trial that points in that direction, doesn't it,and in fact having gone through all that evidence again, reviewed it in detailover the last day and a half at least, we might consider ladies and gentlementhat we're now at the point where we can safely drop the term "unexplained"from this cash source and simply conclude that to the extent that we can'tidentify the cash source from our assessment of the evidence, there's clearlyonly one source for that money, the proceeds of this criminal offending, thisdrug offending.(Emphasis added.)[153] The jury needed to be reminded that it was not that simple. The drug offendingthat was the subject of charges before the jury could not have been the source of thewhole of the funds said to have been laundered. Given the manner in which the Crownhad closed its case, the Judge was required to draw this issue to the attention ofthe jury.[154] The Judge summarised the Crown case as follows:[218] Mr Jenson said to you generally on the money laundering as betweenthe two couples and the five charges that you are going to have to deal with isthat Ms Clay is the cornerstone of the Crown case. You have got her evidence,you have got the booklet she produced analysing the financial position of bothcouples, Frank and Irene, Slobodan and Raiha, and her total analysis revealssubstantial cash available to both. I am telling you that when you can cometo look at the individual charges, Frank and Irene, you cannot just do that ina vacuum and ignore what is happening at Slobodan and Raiha's. The Crowncase is this is a drug-involved family where their personal relationships areintermingled, they are a team and that all evidence is relevant.[219] Mr Jenson says the defence cross-examined Ms Clay on the basisthere might have been errors and on the occasions when that was establishedshe put her hand up and said that's fine, I'll take that out Mr Jenson'ssubmission is that no amount of tinkering around the edges with the figuresand taking a bit out here and a bit out there overcomes the remainingsubstantial quantities of cash which she says is an unexplained cash source.The Crown says a fully explained cash source, drugs.[155] The Judge subsequently turned to the money laundering charges faced byMr F Milosevic and Ms Raki. He referred to submissions made by counsel forMr F Milosevic, which we briefly mentioned earlier, as follows:[256] Mr Nabney representing Mr Frank Milosevic makes this point.He said it's a long period and it exceeds the intercept period. But there'snothing in that. The money laundering charges go back to 1 December 2015.We know the intercept started in October 2017 to the end of March 2018.The intercepts relate to the drug offending but on the back of that Ms Claywas asked to analyse documents that the police got under warrants for alonger period as they wanted to look further back.[257] Now I do not think Mr Nabney was saying the money launderingperiod should synchronise with the intercept period, but if you thought thatit is not correct anyway. The money laundering period is the moneylaundering period and [Ms] Clay's analysis covers that period. It is whatyou make of the analysis in determining where what she says is anunexplained cash source came from.[260] Mr Nabney says, coming back to the intercept period, the differenceis only $9,000 and for that period that's not a lot of money and could beexplained by innocent sources but as I emphasised to you, you are not limitedto the intercept period, you are limited to the entire money laundering periodwhich is much longer and you view it as that. You look into that period andyou make an assessment of what [Ms] Clay comes up with and ask yourself:"Has the Crown satisfied us beyond reasonable doubt on the elements ofthe money laundering allegations?"[156] In neither of these passages did the Judge tell the jury they could only convicton transactions that pre-dated the Operation if they were sure the funds in questionwere derived from earlier drug offending with which the defendants have neverbeen charged.[157] Further, that the jury acquitted the Milosevics of the charge of cultivationalleged to have occurred between November 2016 and April 2017; and also acquittedMr F Milosevic of the specific charge of supplying methamphetamine betweenMay 2017 and February 2018, undermines the proposition that the jury was in factsure that uncharged drug offending had taken place prior to the commencement ofthe Operation.[158] We are also mindful of the late amendment, after the close of evidence, tothe terms on which the money laundering charges were laid originally and aroundwhich the defence had clearly structured their case. That late change could only havecompounded the confusion as regards the evidence, or rather lack of it, of the criminaloffending on which the majority of the money laundering charges were based.[159] For those reasons, given the issues involved in the severance decision andbecause of the way this trial unfolded, we are not persuaded the money launderingconvictions can be regarded as safe. We therefore quash those convictions.Sentence appeals[160] Section 250(2) of the Criminal Procedure Act 2011 provides that this Courtmust allow an appeal against sentence if it is satisfied there is an error in the sentenceand that a different sentence should be imposed. Otherwise, the appeal mustbe dismissed.[161] As this Court confirmed in Tutakangahau v R, the focus is on whether thesentence imposed is within range rather than the process by which the sentencewas reached.62 Ultimately, we have to consider whether the sentences imposed weremanifestly excessive.63[162] In terms of methamphetamine offending, this Court's judgment in Zhang v Rdescribes a two-stage approach to sentencing.64 The first stage sets the starting pointby reference to the quantity of methamphetamine involved and also by reference to62 Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].63 At [35].64 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [10].the offender's role. Quantities are set out in different bands, and roles are categorisedbroadly as "lesser", "significant" or "leading".65 The second stage addresses anymitigating and aggravating circumstances relevant to the offender.66Mr F Milosevic[163] The Judge, in sentencing Mr F Milosevic, noted his offending involved some2.4 kg of methamphetamine, at least 400 cannabis plants and the money laundering.67He considered Mr F Milosevic had abused the mana that attached to his role as"president of your club".68[164] On the methamphetamine charges, the quantity and Mr F Milosevic's leadingrole brought him within band five of Zhang v R. That band, for quantities greater than2 kg, attracts starting points between 10 years' to life imprisonment. The Judgeadopted a starting point of 15 years' imprisonment.69 He uplifted that after accountingfor totality by 18 months for the cannabis offending, and a further 12 months for themoney laundering offending. He reached an end sentence of 17 years and six months'imprisonment.70 A 50 per cent MPI was imposed, which Mr Nabney at sentencingaccepted as being at the upper limit. That MPI was necessary to hold Mr F Milosevicaccountable, to denounce and to deter his conduct.71[165] On appeal, Mr Nabney submits that, given the quantity of methamphetamineinvolved was only slightly above the cusp of band 5, a starting point of 12 years'imprisonment on the methamphetamine charges was appropriate. Whilst heacknowledges he accepted at sentencing that a 50 per cent MPI could have beenimposed, he refers to Tran v R, a decision of this Court released after sentencing, whichconsidered that the accountability and denunciation objectives were fully achieved inthat case by the imposition of a high finite sentence.72 He also refers to Paora v Rwhere a starting point two years higher than that for Mr F Milosevic was adopted in65 At [125]–[126].66 At [136].67 Mr F Milosevic sentencing notes, above n 3, at [4].68 At [15].69 At [26].70 At [41].71 At [45]–[47].72 Tran v R [2021] NZCA 464 at [48]–[49].a case involving 300 grams more methamphetamine and where there was alsoa conviction of conspiracy to deal in ephedrine, which could have been made toproduce more methamphetamine.73[166] We do not consider those cases assist Mr F Milosevic:(a) First, Tran is clearly distinguishable. Whilst this Court adopteda 19-year starting point where 109.6 kg was involved, Mr Tran hada much more limited role than Mr F Milosevic. Mr Tran was a "willingpair of hands" with no organisational role, not the head ofthe operation.74(b) Secondly, we consider Mr F Milosevic's sentence is consistent withPaora. Mr Paora, like Mr F Milosevic was a leading gang member.We consider the two-year difference in starting points properly reflectsthe higher level of offending in Mr Paora's case. Certainly we do notconsider that higher level of offending justifies a five-year differencewhich Mr Nabney would have us adopt.[167] The 12-year starting point Mr Nabney submits is appropriate has been appliedin circumstances less serious than the present case. Such a starting point was adoptedby this Court in:(a) Martin v R, where a person had manufactured just 600 grams ofmethamphetamine in a solo operation;75 and(b) Hall v R, a case in which one of the appellants had a leading role in themanufacture of just over a kilogram of methamphetamine.7673 Paora v R [2021] NZCA 559.74 Tran v R, above n 72, at [18].75 Martin v R [2020] NZCA 318 at [10], [24] and [26].76 Hall v R [2020] NZCA 183 at [12]–[13] and [31].[168] Furthermore, in Chai v R Kós P, writing for this Court, made the followingobservations which are of assistance in the present case:77 the quantity here, two kilograms, is right on the cusp of bands four and five.So that means, for instance, that the ringleader of a supply chain concernedwith say 1.95 kilograms might expect a starting point near the band four topof 16 years. A person in the chain with an unequivocally lesser role (butthe same 1.95 kilograms) might expect 10 years (up from the eight yearstarting point, because the band starts at only 500 grams). Logically, someonein between (i.e. significant role and 1.95 kilograms) might expect between12 and 14 years. A further 50 grams, taking the offender into band five, shouldmake no very appreciable difference to those numbers.[169] Against that background, we consider Mr F Milosevic's starting point was wellwithin range.[170] We also consider the MPI imposed was appropriate. Mr Nabney again referredto Tran where this Court, as mentioned, quashed an MPI of just under 50 per cent.78But in that case, Mr Tran had no previous convictions, was young and, again, hada much more limited role. In cases of commercial methamphetamine dealing, andabsent special circumstances that are not present here, the imposition of an MPI isappropriate because of the purposes of holding an offender accountable, denunciation,protection of the community and deterrence.79 Those purposes required, in our view,the MPI imposed, which we consider to have been entirely orthodox.80[171] We therefore dismiss Mr F Milosevic's challenges to his sentence, except inone respect. As we have allowed the appeal against conviction in respect of the moneylaundering charges, we remove the 12-month uplift applied in respect of those charges.[172] Mr F Milosevic's sentence appeal is therefore allowed in part. We substitutehis sentence to one of 16 and a half years' imprisonment and maintain the50 per cent MPI.77 Chai v R [2020] NZCA 202 at [20]; cited with approval in Wellington v R [2020] NZCA 277at [15].78 Tran v R, above n 72, at [21] and [59].79 Chai v R, above n 77, at [39]; and Zhang v R, above n 64, at [171].80 See Paora v R, above n Error! Bookmark not defined., at [68].Mr S Milosevic[173] The Judge, in sentencing Mr S Milosevic, noted his offending involved some2.5 kg of methamphetamine, at least 400 cannabis plants, and the money laundering.81Mr S Milosevic was his father's "right hand man".82 There was no basis to distinguishMr S Milosevic from the role Mr F Milosevic had, apart from the fact Mr F Milosevichad abused his position as a leader within the community.83 Notwithstanding thatthe Judge adopted the same starting point on the methamphetamine charges of 15years' imprisonment. He also adopted the same uplifts for the cannabis and moneylaundering offending, to reach 17 years and six months' imprisonment.84[174] Unlike for Mr F Milosevic, however, the Judge applied a 10 per cent discountfor Mr S Milosevic's lack of previous convictions. Therefore an end sentence of15 years and nine months' imprisonment, with a 50 per cent MPI, was reached.85[175] On appeal, Mr Walsh submits Mr S Milosevic's end sentence should have beenin the region of 9–11 years' imprisonment, with no MPI because Mr S Milosevic hadno previous convictions.[176] First, he submits the 15-year starting point on the methamphetamine chargeswas too high. Mr S Milosevic's role was different from his father's. It was not leading.He only played a "significant" role in the management of the operation and had notabused a position of trust and leadership in the community. A 12- to 13-year startingpoint was appropriate.[177] Secondly, Mr Walsh submits the Judge erred in refusing to apply a discount formatters raised in Mr S Milosevic's s 27 report. Whilst that report spoke ofMr S Milosevic's happy upbringing, from an early age gangs were a normal part ofhis life. There was a nexus between that background and his offending.His background impaired his decision-making ability and moral culpability.A 10 per cent discount was warranted.81 Mr S Milosevic sentencing notes, above n 4, at [6]–[8].82 At [12].83 At [22].84 At [23]–[25].85 At [26]–[28].[178] Given our earlier conclusion that the starting point adopted in respect ofMr F Milosevic was within range, and that the quantities involved are similar, role isthe determinative factor here.[179] As the Crown acknowledges, Mr F Milosevic was more senior thanMr S Milosevic within the gang hierarchy. However, we accept the submission thatthe two effectively ran the operation as a joint enterprise. Whilst Mr S Milosevic mayhave been more operationally involved than his father, the number of the indicia ofleading role in Zhang were engaged.86 In particular, he:(a) directed and organised the buying and selling of methamphetamine ona commercial scale;(b) had substantial links to, and influence on, others in the chain; and(c) had an expectation of substantial financial gain.[180] Whilst Mr F Milosevic may have abused his position of trust withinthe community, in our view that is insufficient to distinguish the Milosevics' roles.Accordingly, it was open to the Judge to adopt the same 15-year starting point inrespect of both men.[181] In support of his submissions regarding the s 27 report, Mr Walsh referred toCarr v R and Poi v R.87 However, those cases are distinguishable. They both involvedsevere deprivation and disadvantage from an early age. Here, and as Mr S Milosevicacknowledges, there is no suggestion Mr S Milosevic suffered childhood deprivation,lack of care or affection. Indeed, according to the report writer, Mr S Milosevic saidhe had a happy upbringing, free from violence and poverty. He also attested to hisstrong connections to tikanga Māori and marae in the Whakatāne area.[182] Whilst we accept that, to some extent, normalisation of gang culture has beena feature of Mr S Milosevic's life, we also note Mr F Milosevic did not want him to86 Zhang, above n 64, at [126].87 Carr v R [2020] NZCA 357; and Poi v R [2020] NZCA 312.join the gang. In that context, we consider Mr S Milosevic's gang involvement wasmore the product of his own decision-making, rather than familial pressure. As thisCourt has previously recognised, a s 27 discount may not be warranted where anoffender cannot show a strong linkage between systemic deprivation in theirbackground and their poor decisions as an adult.88[183] In terms of the imposition of the 50 per cent MPI, we recognise the position isslightly different from that of Mr F Milosevic because Mr S Milosevic was a first-timeoffender. In Zhang v R, the Full Court dealt with first time offenders of previous goodcharacter, Mr Yip (who had a leading role in the attempted import of 60.9 kg) andMr Zhang (who had a significant role in the import of 17.9 kg). This Court consideredMPI's were necessary in both cases. This Court emphasised that "knowingparticipation in substantial, commercial scale of drug offending with potentiallyextremely serious social consequences" required an MPI. Otherwise, release afterserving a third of one's sentence would send an "unacceptable message" to thoseparticipating or minded to participate in commercial scale dealing.89[184] Despite the greater quantities involved in those cases, that principle wouldappear to be one of general application. Paora, described earlier, involved some2.691 kg of methamphetamine and an appellant who had no prior convictions fordrug dealing. This Court considered the 50 per cent MPI imposed in that case was"entirely orthodox" given the nature of that offending.90[185] Against that background we think it was open to the Judge to impose the50 per cent MPI.[186] We dismiss Mr S Milosevic's challenges to his sentence, except we againremove the 12-month uplift applied in respect of the money laundering charges.[187] Mr S Milosevic's sentence appeal is therefore allowed in part. We substitutehis sentence to one of 14 years and nine months' imprisonment and maintain a50 per cent MPI.88 Tufui v R [2020] NZCA 568 at [68]; and Purua-King v R [2020] NZCA 61 at [8] and [9].89 Zhang v R, above n 64, at [263] and [308].90 Paora v R, above n Error! Bookmark not defined., at [68].Mr Pryor[188] Mr Pryor was sentenced in respect of approximately 80 grams ofmethamphetamine, placing him in band two of Zhang. That band, for quantitiesbetween five and 250 grams, attracts starting points between two and nine years'imprisonment.91 The Judge adopted the Crown submission that a starting point of sixyears' imprisonment, together with an uplift of 18 months' for the cannabis offending,was appropriate.92 Mr Pryor and his partner, who had earlier pleaded guilty and wassentenced, played significant roles.93 The Judge then applied a 10 per cent discountfor Mr Pryor's remorse and prospects for rehabilitation, to reach an end sentence ofsix years and nine months' imprisonment.94[189] On appeal, Mr Bean submits the starting point was too high. He accepts thequantity involved and the characterisation of Mr Pryor's role as significant, but saysMr Pryor was not a gang member. He was, in essence, a first-time offender with drugsand an entrepreneurial criminal willing to deal with gang members. That placed himin the middle of the range between "head of the snake" and "housewife dealer", asdescribed in Zhang.95 A starting point of four years' imprisonment was appropriate.[190] We do not accept those submissions, given the quantity involved and thesignificant role Mr Pryor played. In Royal v R, this Court considered (putting othernon-methamphetamine offending to one side) a starting point of four years'imprisonment would have been appropriate in a case involving possession for supplyof much less methamphetamine (15.6 grams) where the appellant had played asignificant role.96 Moreover, in Pou v R, this Court considered a starting point between7–7.5 years imprisonment would have been appropriate in a case involving supply of27 grams to a vulnerable young person and possession of a further 22 grams.97[191] Against that background, Mr Pryor's starting point of six years' imprisonmentcannot be said to be out of range. He played a significant role as a prolific drug dealer91 Zhang v R, above n 64, at [125].92 Mr Pryor sentencing notes, above n 8, at [9]–[10].93 At [10].94 At [20].95 Zhang v R, above n 64, at [51].96 Royal v R [2020] NZCA 129 at [20].97 Pou v R [2020] NZCA 160 at [79]–[82].and engaged in a number of deals with multiple customers over a several-monthtimeframe for financial reward.Mr Te Kira[192] Mr Te Kira was sentenced in respect of some 135 grams of methamphetamine,of which he had facilitated the supply to Mr S Milosevic, placing him — like Mr Pryor—in band two of Zhang. Accounting for Mr Te Kira's role as between lesser andsignificant, the Judge reached a starting point of four years and nine months'imprisonment.98 In respect of a further possession of methamphetamine charge,the Judge then applied a 6-month uplift.99[193] The Judge applied discounts of six months for matters raised in Mr Te Kira'scultural report, a further six months to account for his rehabilitation prospects, and afurther three months to account for the 30 months he had spent on EM bail.100The Judge rejected the submission that discounts should have been applied foraddiction and remorse. He could not see any evidence of addiction, and whateverremorse Mr Te Kira expressed was "too little too late" given he defendedthe charges.101 An end sentence of four years' imprisonment was imposed.102[194] On appeal, Mr Simperingham submits a sentence of less than two years'imprisonment was appropriate because the following discounts — totallingapproximately 75 per cent — should have been made:(a) Five per cent for remorse: Mr Te Kira's decision not to plead guilty wasthe result of pressure he felt from his co-offenders, the Milosevics, whowere not only gang members but also members of his partner's widerwhanau.(b) 20 per cent for rehabilitation and addiction: Mr Te Kira's rehabilitativeefforts included engagement with the Man Up/Destiny Church98 Mr Te Kira sentencing notes, above n 9, at [12].99 At [13].100 At [23], [29] and [31].101 At [24] and [26]–[28].102 At [32].programs whilst on EM bail. From August 2019, he has been drug-free.His marriage and birth of first biological child in 2019 marked a turningpoint in his life to leave his criminal past behind him.(c) 20 per cent for personal circumstances and his cultural report:Mr Te Kira's parents died of heart attacks when he between 11 and13 years old. His sense of abandonment led him to the gangenvironment and early use of cannabis and methamphetamine. Thatbackground provided important context for his offending.(d) Just over 30 per cent (or 20 months) for the 30 months he spent subjectto EM bail (which included exceptions to attend work, rehabilitativeprograms and church). Other than two minor, alcohol-related breaches,he otherwise complied with his conditions.103 Mr Simperinghamemphasises the restrictions to Mr Te Kira's liberty. In particular, hecould not properly grieve with his whanau when his whangai motherand brother died.(e) If, applying those factors, a sentence of 14 months' imprisonment wasreached, home detention should have been imposed. However, asMr Te Kira has already served over a year in prison, this Court shouldrelease Mr Te Kira on time served.[195] We are unable to accept those submissions. In terms of rehabilitation and thematters raised in Mr Te Kira's cultural report, we consider the 12-month discountapplied for those factors was sufficient. We do not think the circumstancesdemonstrate the need for specific further discounts to have been given for remorseor addiction.[196] Finally, any credit to be given for time spent on EM bail is an evaluativedecision to be made having regard to the restrictiveness of EM bail conditions in eachcase.104 We find the Crown's submissions instructive on this point:103 The Crown disputes this: it says Mr Te Kira breached bail nine times.104 Paora v R, above n Error! Bookmark not defined., at [53].The respondent understands that for seven months (December 2019 toJuly 2020) Mr Te Kira was subject only to a limited night-time curfew(between 12 am and 4 am). The rest of the time he was subject to a 24/7curfew, but was granted, as his counsel describes a "plethora of variations"including for: multi-night stays at marae for family birthdays and tangis,attendance at commercial driving courses, accompanying his pregnant partnerto her medical appointments, his child's birth, regular visits to see his motherwhile she was critically unwell, job interviews, the Man Up programme, tripsto Auckland to attend Destiny Church conferences, and a five day Christmastrip with his partner and family. From August 2018, his bail was also varied toenable him to attend regular employment, on average for about ten hours aday, five to seven days a week.[197] In those circumstances, we do not consider Mr Te Kira's time on EM bail tohave been so restrictive that a further discount, over and above the three monthsthe Judge gave, was warranted.[198] For all those reasons, we dismiss Mr Te Kira's sentence appeal.Mr Manuel[199] Mr Manuel was sentenced primarily for his cannabis offending, whichinvolved some 120 ounces (or 3.4 kgs). The Judge adopted a starting point ofthree years' imprisonment by reference to category two of R v Terewi.105 Category twoencompasses small-scale cannabis offending with a commercial purpose, generallyattracting a starting point between two and four years' imprisonment.106The Judge uplifted that by six months in respect of a small amount ofmethamphetamine, 12 months for firearms and ammunition charges, and three monthsfor Mr Manuel's previous convictions.107 The Judge applied a 30 per cent discountfor Mr Manuel's personal and cultural background, to reach an end sentence ofthree years and four months' imprisonment.108[200] On appeal, Mr James only takes issue with the starting point for the cannabisoffending. A starting point of two-and-a-half years would have been appropriate,before any uplifts or discounts, to reach an overall end sentence of three years'imprisonment.105 Mr Manuel sentencing notes, above n 7, at [2]–[5]; and R v Terewi [1999] 3 NZLR 62 (CA).106 R v Terewi, above n 105, at [4].107 Mr Manuel sentencing notes, above n 7, at [6], [12] and [13].108 At [26] and [30].[201] As the Judge acknowledged, "[i]t may be that there has been a shift in judicialattitudes" to the application of Terewi.109 For instance, a three-year starting point wasconsidered to be appropriate in McLaine v R, a case from this Court in 2000, wherepolice found significantly less cannabis (35.5 grams, or 1.23 ounces), cash and otherparaphernalia.110 Similarly, in Reardon v R this Court upheld a three-and-a-half yearstarting point in a case involving the sale of two "tinnies" to an undercover officer for$20 each, four further "tinnies" at the appellant's address and other evidence of a smallscale operation.111[202] However, we are satisfied the three-year starting point was not manifestlyexcessive. Mr Manuel was frequently dealing in significantly higher commercialamounts. He was found in possession of clear indicia of drug dealing and it is plainhe was assisting a reasonably significant commercial enterprise.[203] Mr Manuel's sentence appeal is dismissed.Result[204] Mr F Milosevic and Mr S Milosevic's appeals against conviction are allowed inpart. Their convictions for money laundering are quashed. Their appeals againstconviction are otherwise dismissed.[205] Mr F Milosevic's appeal against sentence is allowed in part. We substitute hissentence of 17 years and six months' imprisonment with a 50 per cent MPI with oneof 16 years and six months' imprisonment with a 50 per cent MPI.[206] Mr S Milosevic's appeal against sentence is allowed in part. We substitute hissentence of 15 years and nine months' imprisonment with a 50 per cent MPI with oneof 14 years and nine months' imprisonment with a 50 per cent MPI.[207] Ms Raki and Ms Tawera's appeals against conviction and sentence are allowed.Their convictions for money laundering are quashed.109 At [5]. See also R v Smyth [2017] NZCA 530 at [17].110 McLaine v R CA355/2000, 30 November 2000.111 Reardon v R CA459/2003, 19 April 2004.[208] Mr Manuel's appeal against conviction and sentence is dismissed.[209] Mr Pryor's application for an extension of time to appeal is granted, but hisappeal against conviction and sentence is dismissed.[210] Mr Te Kira's appeal against sentence is dismissed.Solicitors:Webby & Associates, Tauranga for Ms RakiWoodward Chrisp Solicitors, Gisborne for Mr Te KiraBean Law, Hamilton for Mr PryorCrown Law Office, Wellington for Respondent