WRIGHT v R [2020] NZCA 581

WRIGHT v R [2020] NZCA 581 [23 November 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA68/2020[2020] NZCA 581BETWEEN MARK ANDREW WRIGHTAppellantAND THE QUEENRespondentHearing: 7 October 2020Court: Gilbert, Mallon and Ellis JJCounsel: A J McKenzie for AppellantF R J Sinclair and T R Simpson for RespondentJudgment: 23 November 2020 at 9.30 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Following a trial before Judge Garland and a jury, Mr Wright was convicted ofthree charges of importing a Class A controlled drug (methamphetamine).1 He was1 At the start of his trial he also pleaded guilty to one charge of possessing pipes formethamphetamine use and one charge of possessing methamphetamine.sentenced to nine and a half years' imprisonment on 17 January this year.2 The Judgeapplied the guidelines set out by this Court in Zhang v R.3[2] Mr Wright now appeals his importation convictions on several grounds:insufficient evidence that the drugs were imported, insufficient evidence that he wasinvolved with the importation, and that an "attribution" chart prepared by the Crownwas improperly given to the jury. He appeals his sentence on the ground that the Judgeought to have reduced the starting point (or given an appropriate discount) to reflectthat the drugs were intercepted by the New Zealand Customs Service (Customs) beforehe received them.Factual background[3] On 15 June 2017, a package from California, United States was received bythe New Zealand Post Depot in Christchurch (Package A). The wrapping ofPackage A recorded:(a) Sender: law offices of Jean Goldsman, 501W Civic Centre Drive, SantaAna, US 714 541 3333.(b) Addressed to: Royce Michael, 44 Rutherford Street, Woolston,Christchurch 8023.(c) Tracking number: EQ 001 711 449 US.[4] While in transit, a redirection for Package A had been requested throughthe New Zealand Post website. The requester asked to collect it from Kiwibank PostOffice, Ferrymead and gave the phone number 021 0260 8929 (the 8929 redirectionnumber).[5] Package A was examined and seized by Customs who found it contained111.7 g of methamphetamine hidden within legal documents.2 R v Wright [2020] NZDC 730. The sentence comprised a nine-year starting point with an upliftof six months for past offending.3 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648.[6] On 21 September 2017, Customs officers examined two further packages thathad been unable to be delivered by FedEx Christchurch earlier that morning.The information written on the first (Package B) included:(a) Sender: Chau Lee, 4384 1-2 Bancroft Street, San Diego, California92104, US.(b) Addressed to: Mr and Mrs Moore, 260 Innes Road, St Albans,Christchurch. Phone number +64 947 55703.(c) Tracking number: 787 753 937 381.[7] And the other (Package C) had written on it:(a) Sender: Lu Chiu, 4540 Florida Street, Apt 9, San Diego, California92116, US.(b) Addressed to: Dan Moore, 219 Innes Road, St Albans, Christchurch.Phone number +64 947 55709.(c) Tracking number: 787 753 888 129.[8] It transpired that Package B contained 146.4 g of methamphetamine hiddenamong documents; Package C contained 138.3g of methamphetamine hidden amongdocuments.[9] Later that day, an unknown woman purporting to be "Mrs Moore" telephonedthe Fedex Depot in Christchurch. She said that her husband would pick up two parcelsfrom the depot that afternoon, and she gave a contact number: 021 0257 6846 (referredto at trial as "the Orange Number").[10] That afternoon, a silver Mazda (registration number HHY676 — registered toMr Wright) arrived at the depot; a man got out of the car and went to the counter.He said he was there to pick up Packages B and C. He had the necessary paperworkthat showed tracking numbers for each of them. He was told by staff that Customshad detained the packages — he left empty-handed.[11] On 22 November 2017, the police executed a search warrant at Mr Wright'sChristchurch home. They found a small amount of methamphetamine and two glasspipes. Mr Wright later accepted that they belonged to him.4 They also found a pieceof paper with a guide on how to use the dark web to import drugs.[12] The subsequent investigation involved attributing multiple mobile phoneSIM cards, IMEI numbers (handset numbers), and text data. Mr Wright had severalphones, and several SIM cards that he swapped between those phones. The Crowncase was that the resulting attribution trail pointed to Mr Wright as the person who hadused the 8929 redirection number to redirect Package A. It also pointed to Mr Wrightbeing the person who used the Orange Number to arrange the pickup of Packages Band C.[13] Further investigations revealed that Mr Wright used encrypted applications onhis phones, which the Crown alleged was to keep his illegal communications hidden.The text data from the phones indicated that Mr Wright was involved with dealingdrugs and with purchasing Bitcoin. As well, large sums of money had been transactedthrough Mr Wright's bank account — cash deposits of around $46,000.Conviction appeal[14] As noted earlier, Mr Wright's conviction appeal was advanced on threegrounds. He says a miscarriage of justice has occurred because:(a) there was insufficient evidence for the jury to be satisfied that the drugswere imported;(b) there was insufficient evidence for the jury to be satisfied thatMr Wright was involved with the importation; and4 Leading to his guilty plea on the relevant charges.(c) the phone "attribution" chart prepared by the Crown was wronglyprovided to the jury.[15] We address each in turn.Sufficiency of evidence to prove packages imported[16] In order to establish the charges, the Crown needed to prove that the drugs hadbeen imported into New Zealand from a place outside New Zealand, as required bys 6(1)(a) of the Misuse of Drugs Act 1975.[17] At trial, the Crown primarily relied on the markings, stickers and labels on thepackages, which included the United States sender addresses, the words "United StatesPostal Service", and the tracking numbers.5 In his evidence, Andre Durante(the Customs Officer in charge of the investigation) accepted that the addresses onthe packages — and most likely the senders' details — were false.[18] But Mr Durante's evidence was that, based on their markings and stickers, hebelieved the packages had arrived from overseas. Mr Durante also said thatthe United States Postal Service uses EMS New Zealand (EMS) as a subsidiary todeliver mail within New Zealand. The relevant part of his evidence was as follows:Q. So you're gesturing at the sticker with orange on it on the bottomleft-hand side underneath the green number 39 and can you read aloudthat sticker.A. Delivered by New Zealand Post. For any enquiries please call0800 736353 EMS, associated number EE020 223535NZ.THE COURT:Q. So what are you saying that sticker tells us?A. International mail through New Zealand Post arrives at aninternational mail centre and that [is] located in Auckland. From thatlocation once an imported mail item arrives NZ Post affix sucha sticker to the item.EXAMINATION CONTINUES: MR TAFFS5 Packages B and C (sent via FedEx) differ from Package A, but each bears a printed label indicatinga San Diego origin and ID number and the words "INTL [International] priority" and "AKL"[Auckland].A. So there's different streams that mail can arrive into New Zealand.A common method is for New Zealand Post and one organisationwhich – offshore – in this case United States Postal Service – they usethe services of NZ Post on arrival into New Zealand so that's onemeans that mail can come to New Zealand. The other common streamis Fast Freight.THE COURT:Q. So from that I take it you're telling me that sticker indicates that thisparcel came through New Zealand Post, Auckland.A. Yes Your Honour.EXAMINATION CONTINUES: MR TAFFSQ. And just at the left-hand side of that there's a bar code and underneathit there's a series of numbers and letters. Can you read that aloud?A. EQ001711449US.Q. And are you able to speak to what the US at the end of that numbermeans?A. This signifies that this particular item has come fromthe United States.THE COURT:Q. Just before you move on from that so it came into New Zealand withthat tracking number EQ001711449US?A. Yes Your Honour.Q. And then it was given a tracking number within New Zealand?A. Yes that is correct.Q. EE020223735NZ?A. Yes Sir.[19] Mr Durante was not challenged on this evidence. Kadin Conner (anotherCustoms officer whose evidence was read by consent) also identifiedEQ001711449US as an international tracking number.[20] Although defence counsel's closing address initially suggested that the defencewas about identity rather than importation,6 he later made it clear that importation wasdisputed. In doing so, he emphasised the lack of direct evidence (for example, fromanyone at FedEx) confirming that the packages were sent from the United States.And he said that the inferential evidence on the point was simply not enough to becertain.[21] The Judge dealt with the issue in his summing up as follows:[64] First, the defence case is that the Crown has not proved that any ofthe packages were brought into New Zealand. In other words, the Crown hasnot proved that these packages were imported – that is the first essentialingredient for the Crown to prove beyond reasonable doubt in relation to eachcharge. There is no direct evidence. The defence argues it is not somethingthat you can infer, as the Crown has suggested in all the circumstances,including the obvious markings on the packages and the evidence ofMr Durante, that the US Postal Service uses EMS as a New Zealand subsidiaryto deliver mail in New Zealand, so the defence says you cannot infer that,whereas the Crown says you can.[65] Clearly, members of the jury, that is a preliminary issue for you whichyou will need to consider. You should look at the exhibits for yourselves. Is ita reasonable inference that you can draw, especially from the nature ofthe packages and the markings on them that each was brought intoNew Zealand? It is a matter for you, members of the jury, and not for me, butI suggest once you look at the packages then the answer may be quite clear.(Emphasis added.)[22] Mr McKenzie's principal points on appeal were that the Judge went too far inindicating his own view of the facts in the last sentence of [65] and that his view was,in any event, not supported by the evidence.[23] As to the first point, this Court said in R v Keremete:7[19] The judge need not, and should not, strive for an artificial balancebetween the rival cases if the evidence clearly favours one side or the other.A judge is entitled to express his or her own views on issues of fact, so longas it is made clear that the jury remains the sole arbiter of fact. Any comment6 Mr McKenzie said:"It is a whodunnit type of case. Who redirected [Package A], who imported [Packages B andC]? Not who picked them up but who imported them, because as we know there is a bit ofdifference there."7 R v Keremete CA247/03, 23 October 2003 (citations omitted). Despite its age, Keremete hasrecently been cited by this Court as being the "leading statement on how a judge should approachhis or her summing-up": B (CA182/2018) v R [2019] NZCA 18 at [55].on the facts should be made in suitable terms without use of emotive terms orphrases which could lead to a perception of injustice. But provided the issuesare fairly presented, the comment may be in strong terms Inevitably theseare ultimately matters of degree and judgment.[24] Here, the Judge had given the jury the standard direction that they were the solearbiters of the facts.8 And at [65] he told the jury that they had to determine the originof the drugs for themselves. We acknowledge that the Judge did not say that directevidence would have been easily obtainable, or that care was needed in relying onthe markings and stickers alone when other aspects of the labelling on the packageswere false. The absence of such further evidence does not, however, mean thatthe evidence that was before the jury was inadequate. And we consider that the Judgeadequately put the defence case — which was that there was no direct evidence ofimportation and that no safe inference of importation could be drawn from the indirectevidence. We do not consider the Judge's comments give rise to a miscarriage.[25] As to the second point, we consider that the appearance of the packages(photographs of which we have seen), combined with the explanations of Mr Durante,readily justified an inference that the packages had come from abroad. We agree withMr Sinclair for the Crown that the jury might well have thought it improbable thatgreat lengths would be taken to package drugs sent within New Zealand so that theyappeared to have a foreign origin.Sufficiency of evidence to prove Mr Wright's involvement in importation[26] Mr McKenzie says that there was insufficient evidence connecting Mr Wrightto the offending. He acknowledged, however, that this submission was stronger inrelation to Package A, given the evidence that it was Mr Wright who went to pick upPackages B and C. He also raises a legal issue about whether the importation ofPackages B and C was complete after the attempt to deliver them and, so, by the timeof Mr Wright's attempt to collect them at the FedEx depot.8 At [3] of the summing up he said:"However, as I indicated at the outset of this case, I do not decide the facts. I do not decidethe verdicts. The facts of the case and the verdicts are for you, and for you alone. If, inthe course of what I have to say, you think that I have got some view about the facts of the caseor about the verdicts, then please ignore it, unless of course it happens to coincide with yourown view. The facts of the case and the verdicts are for you."[27] The last matter can be dealt with briefly. As Mr McKenzie acknowledged,the evidentiary significance of Mr Wright's attempt to collect the packages isessentially the same, regardless of whether the importation was, by that point,complete.9 His attempt to pick up the packages (and his possession of the relevanttracking numbers) can legitimately be used — combined with the other circumstantialthreads — to infer his prior involvement with, and responsibility for, the importation.Proof of his involvement in the importation does not require his physical presence at(or before) the time the act of importation came to an end.[28] As for the sufficiency of evidence showing that Mr Wright was involved inthe importations, there is no dispute that the Crown's case against Mr Wright wascircumstantial. To reiterate, the strands of the circumstantial rope included:(a) a piece of paper found at Mr Wright's address with guidance onaccessing the dark web;(b) nine mobile phones and three SIM cards found at Mr Wright's address;(c) evidence of a large "web of handset and SIM card usage" (shownvisually on the attribution charts) consistent with "mixing andmatching" SIM cards in different handsets;(d) the presence of encrypted apps on various phones attributed toMr Wright;(e) text messages from mobile phones attributed to Mr Wright thatsuggested use of encrypted apps to communicate and discuss paymentsmade with Bitcoin;(f) evidence from Mr Wright's bank accounts that suggested he wasbuying Bitcoin;9 The Crown's case at trial was that by the time Mr Wright went to the depot to pick up the packagesthe importation had ceased, with the prosecutor saying to the jury in closing that "to prove thischarge you'll need to be satisfied that he had involvement in that importation prior to thatmoment". Importation had certainly ceased when Customs took control of the packages anddecided to retain them.(g) Mr Wright's remission of funds totalling $5,750 through WesternUnion to Cameroon nationals in Japan;(h) $2,400 found in cash at Mr Wright's address; and(i) $46,870 in Mr Wright's BNZ bank account from cash deposits made atATMs between 5 January 2017 and 2 August 2017.[29] Mr McKenzie submitted that a number of these strands are capable of innocentexplanation and that others can bear no relationship to the importations. He said:(a) there was no evidence that the drugs were paid with Bitcoin or evidencematching the value of the Bitcoin with the methamphetamine imported;(b) there was no direct link (such as matching values) betweenthe international money transfers and the importations;(c) the deposits into Mr Wright's bank account cannot be evidence ofthe three importations because the drugs were not received by him forsale and there was no evidence that Mr Wright had previously dealtwith methamphetamine that would support an inference that the moneywas from drug dealing.(d) Mr Wright's possession of multiple phones and use of encryptedmessaging apps was of little evidentiary value;(e) the Crown's attribution chart did not prove that Mr Wright possessedthe relevant phones or SIM cards at the time of the importations;10 and10 For example, Mr McKenzie said that if Mr Wright only acquired the phones in October 2017, hecould not have been responsible for their suspicious use before then (such as the redirection ofPackage A in June 2017 and the female caller arranging collection of Packages B and C inSeptember 2017).(f) the guide for buying drugs on the dark web did not match the timeframefor the importations — the Silk Road website referred to in theinstructions was not then operational.[30] Mr McKenzie also submitted that:(a) the "internal" propensity evidence connecting the three importationsled to an unfair "chicken and egg" problem;(b) the Crown failed to rebut Mr Wright's evidence that he had been askedby his female acquaintance to pick up Packages B and C, and failed toexplain the identity of the unknown female caller; and(c) Mr Wright was simply a convenient scapegoat because of his previousconvictions.[31] As Mr Sinclair submitted, however, these submissions are based on amischaracterisation of the Crown case and of how circumstantial evidence operates.More particularly:(a) if the jury accepted that the phone number used in association withthe redirection of Package A was Mr Wright's, then that would stronglysuggest his involvement in the importation of Package A; and(b) for Packages B and C, there was evidence of a similar associationbetween Mr Wright and the phone number used after the FedExdelivery attempt, and evidence of Mr Wright's later attendance tocollect the packages from the FedEx office.[32] And — as the Judge very clearly explained — if the jury found that Mr Wrightwas involved in the first importation of Package A and that there were relevantsimilarities between that importation and the latter two, they could take the former intoaccount as evidence making it more likely that he was also the importer on the secondoccasion. That kind of propensity reasoning is orthodox and permissible; there isnothing "chicken and egg" about it.[33] And the Crown did not, for example, submit that the cash deposits weregenerated by the shipments forming the basis of the charges; that would have beenwholly illogical, given those shipments did not reach their final destination.11Instead, that evidence — together with Mr Wright's use of Bitcoin, his researchesabout the dark web, the swapping of SIM cards and handsets, the use of encryptedmessaging, and the international money transfers — was called to support theimportation claim and, more particularly, the Crown's contention that Mr Wright knewwhat the packages contained. Conversely, it was relied on to rebut Mr Wright's claimthat he believed he was collecting ordinary internet purchases at the request of hisgirlfriend. As with the cash deposits, the precise timing of the research, transfers andphone usage was not especially material in that context.[34] Given our view that the evidence sufficed to justify convicting Mr Wright,the proposition that he was "a convenient scapegoat" need not be considered further.There is, in any event, no foundation for it.Unfair promotion of Crown's "attribution" chart[35] Mr McKenzie submits that the jury's use of the Crown's attribution chartimproperly promoted the Crown's case. That was also his position at trial, butthe Judge overruled the objection. He criticises the chart because it does not showwhen a particular SIM card was used in a particular handset and it does not show thatMr Wright possessed the various phones and SIM cards at the relevant times.[36] We agree with Mr Sinclair that the attribution charts were an uncontroversialvisual aid prepared to help the jury understand a complex set of relationships.Such visual aids have been commonplace for many years. Both the prosecutor andthe Judge were careful to warn the jury that the attribution charts were not evidencethemselves and that the jury needed to disregard any aspect of them that did not accordwith the evidence.12 And while the charts do have the limitations to which we havejust referred, those limitations were made quite clear to the jury — both the prosecutor11 The Crown case was that Mr Wright was using Bitcoin to purchase the methamphetamine.12 Notably, Mr McKenzie does not seek to argue on appeal that the charts did not, in fact, reflectthe evidence.and defence counsel referred to them, and so too did the Judge (twice) in his summingup. There is nothing in this ground of appeal.Result[37] The jury's verdicts were clearly open to them on the evidence. No risk ofmiscarriage arises. The conviction appeal is dismissed.Sentence appeal[38] The sentence appeal can be dealt with relatively quickly. The sole ground ofappeal is that the starting point of nine years' imprisonment was manifestly excessivebecause it did not take account of the importations' failure. Mr McKenzie submitsthat no harm was caused because the total 396 g of imported methamphetamine wasnever received or distributed. He argues that a starting point of five to six years'imprisonment (plus an accepted uplift of five per cent for the previous convictions)would have been appropriate.[39] The same argument was advanced and rejected at sentencing. The Judge'sreasoning cannot be faulted, and we set out the relevant parts in full:13[18] Mr McKenzie relies on a comment made in the case of Zhang v R, atparagraph 239 in relation to the appellant Hobson where the Court of Appealsaid this:Had Ms Hobson succeeded with the further offence of conspiracy,the total amount supplied would have been 590 grams ofmethamphetamine warranting a starting point of 10 years andsix months' imprisonment under the new sentencing guidelines.Allocating half of that potential increase for the incomplete offencehas been identified by this Court as the correct approach.[19] The Court referred to the decision of Parata v R, a previous decisionof the Court of Appeal in support. The Court went on to say:On this basis an uplift [of] nine months is appropriate.[20] Mr McKenzie is therefore suggesting that although the importationsin your case were complete, as a matter of fact because the importations wereintercepted by authorities you did not get to use or distributethe methamphetamine, thereby reducing the amount of harm that would havebeen caused in the community.13 R v Wright, above n 2 (footnotes omitted).[21] The Crown's response to that argument is it would be a surprisingresult if a person received a discount because authorities successfullyintervened after an importation was complete and thereby prevented the usefor distribution of the drug. Zhang clearly can be distinguished on the basisthat in the case of R v Hobson, the offence was not complete whereas inthe present case the importation was complete. [26] There are no mitigating features of your offending, apart fromthe mitigating feature that I now refer to. The only mitigating feature ofthe offending is that the importations were intercepted and therefore you didnot get the opportunity to use or distribute these drugs. In that sense the harmcaused was limited. However, I accept the Crown's argument that you deserveno credit for that. It would be a surprising result in my view if a personintended to import and use and/or distribute large amounts ofmethamphetamine in New Zealand with the full knowledge of the harm thatthat would do within our community if that person was to receive a substantialdiscount because the authorities intervened in a timely manner.[40] The proposition that some form of discount should be afforded where drugsare intercepted before they reach either the would-be suppliers or their customers isa novel one. It is predicated on the erroneous assumption that there is no differencebetween charges of importing methamphetamine, being in possession ofmethamphetamine presumptively for supply, and supplying methamphetamine.Each are separate offences with their own elements which must be proved. Each isindependently punishable by the same maximum penalty. Being in possession of andsupplying methamphetamine are not elements of a charge of importing. And here,the jury found that all the elements of importing — the crime of which Mr Wright wasconvicted — were proved.[41] Finally, and by way of cross-check, the case of Ms Hobson (one of the Zhangappellants) is, as the Judge found, comparable and instructive. Ms Hobson hadpleaded guilty to, and was convicted of, three charges of importing methamphetamine,three charges of possession of methamphetamine for supply, and one charge ofconspiracy to import methamphetamine. The quantity of methamphetamine importedwas (at least) 300 g, for which this Court found that — taking account of Ms Hobson'sleading role — nine years was an appropriate starting point.14 That is the same startingpoint adopted in Mr Wright's case, for his leading role in the importation of a slightlygreater quantity. In Ms Hobson's case, as noted by the Judge, the starting point was14 Zhang v R, above n 3, at [238].uplifted by nine months to reflect the failed importation of a further 290 g ofmethamphetamine.15 That did not constitute a reduction in sentence on account of themethamphetamine not reaching Ms Hobson; the methamphetamine was intercepted inThailand, so the act of importation was not complete. There is no such failedimportation here.Result[42] The appeal against conviction is dismissed.[43] The appeal against sentence is also dismissed.Solicitors:Crown Law Office, Wellington for Respondent15 At [239].