ROULSTON v R [2020] NZCA 255

ROULSTON v R [2020] NZCA 255 [25 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA80/2019[2020] NZCA 255BETWEEN MARK GRAHAM ROULSTONAppellantAND THE QUEENRespondentHearing: 20 May 2020Court: Cooper, Duffy and Edwards JJCounsel: R M Mansfield for AppellantM Davie for RespondentJudgment: 25 June 2020 at 10 amJUDGMENT OF THE COURTA The appeal against sentence is allowed.B The sentence of seven years and six months' imprisonment formanufacturing methamphetamine is set aside. A term of six years'imprisonment is substituted.B The sentences imposed by Judge Rollo on the other offences stand.D All sentences are to be served concurrently.____________________________________________________________________REASONS OF THE COURT(Given by Duffy J)[1] The appellant, Mr Mark Roulston, was sentenced to seven years andsix months' imprisonment for manufacturing methamphetamine.1 He appeals againstthis sentence on the ground it is founded on an erroneous view of the quantity ofmethamphetamine he manufactured and for other reasons which make the sentencemanifestly excessive.[2] This sentence was the lead sentence in a group of concurrent sentences thatfollowed his pleading guilty in the District Court to drug and drug related offending.Background[3] Around 6.30 am on 27 September 2016, the police executed a search warranton Mr Roulston's address in Te Puke. There, they located a metal condenser, ahot plate, a parr bomb, iodine, caustic soda, electronic scales, $23,240 in cash, ashotgun modified so it could be carried with one hand, and 37.6 grams ofmethamphetamine. He was arrested and charged with:(a) manufacturing methamphetamine;2(b) possession of methamphetamine for the purpose of supply;3(c) supplying methamphetamine;4 and(d) unlawful possession of a pistol.5[4] The charges were framed to encompass the manufacture and supply ofmethamphetamine between 1 January 2015 and 27 September 2016. The Crownmaintained that during this time Mr Roulston manufactured at least eight ounces(224 grams) of methamphetamine.1 R v Roulston [2019] NZDC 2296 [sentencing decision].2 Misuse of Drugs Act 1975, s 6(1)(b) and (2). Maximum penalty life imprisonment.3 Section 6(1)(f) and (2). Maximum penalty life imprisonment.4 Section 6(1)(c) and (2). Maximum penalty life imprisonment.5 Arms Act 1983, s 45(1). Maximum penalty four years' imprisonment.[5] Mr Roulston was interviewed by police. During the interview he admitted tomanufacturing methamphetamine and said that some was for his personal use andthe rest he supplied to his partner and to "a handful" of associates. The implicationsof other relevant parts of the interview are disputed. We shall return to this later.[6] Mr Roulston has always accepted that his admissions during the interviewestablished the charged offences, but he disputes manufacturing the quantityof methamphetamine the Crown claims. This resulted in him entering pleas of guiltyto the charges followed by a disputed facts hearing before Judge Mabey QC.[7] On 20 December 2018, Judge Mabey determined that Mr Roulston hadmanufactured eight ounces of methamphetamine.6 There is no right of appeal againsta decision from a disputed facts hearing; a challenge to the decision must be broughtas an appeal against the sentence that is imposed in reliance on the outcome of thedisputed facts hearing. Accordingly, Mr Roulston was obliged to proceed tosentencing on the basis of the facts as found by Judge Mabey.[8] On this basis he was sentenced by Judge Rollo to seven years and six months'imprisonment on the manufacturing charge.7 On the charges of possession ofmethamphetamine for supply and supply of methamphetamine Mr Roulston wassentenced to five years' imprisonment for each offence, and on the charge of unlawfulpossession of a firearm he was sentenced to six months' imprisonment. All sentenceswere concurrent.The disputed facts decision[9] By agreement the disputed facts hearing took place on the papers.Judge Mabey had recourse to Mr Roulston's police video interview, the transcript ofthe interview and counsel's submissions.[10] Quantity is a valuable factor when setting the starting point of a sentence formanufacturing methamphetamine.8 For sentencing purposes if the prosecutor asserts6 R v Roulston [2018] NZDC 26472 [disputed facts decision].7 Sentencing decision, above n 1.8 Zhang v R [2019] NZCA 507, [2019] 3 NZLR 648 at [104].a greater quantity than an offender accepts this quantity is treated under s 24 ofthe Sentencing Act 2002 as an aggravating fact, which the prosecutor must thereforeprove beyond reasonable doubt.9[11] Mr Mansfield for Mr Roulston submitted that Mr Roulston's answers as to thefrequency of manufacturing were so vague and uncertain they could not support anysafe inference as to the required standard of proof. The Crown contended the interviewsupported the inference that there was manufacturing of two ounces at three monthlyintervals, which could have produced a total of almost 14 ounces over the chargingperiod. Thus, a reduction to eight ounces, as alleged in the summary of facts,adequately allowed for any uncertainty as to frequency.[12] The Judge considered it was unrealistic to restrict the quantity ofmethamphetamine to two ounces (which was the quantity Mr Roulston would accept)for the purposes of sentencing.10 He was satisfied Mr Roulston could produce up totwo ounces of methamphetamine per manufacture, and that the real issue fordetermination was how many times manufacturing occurred during the chargingperiod.11 By a process of inferential reasoning the Judge arrived at the estimate ofeight ounces, which he considered to be a safe but conservative estimate.12[25] Eight ounces at two ounces per cook requires four cooks. During theperiod of the charge that would require a gap of five months between cooks.That is well within Mr Roulston's reference to "few months" and adequatelyallows for any uncertainty.[26] I can draw a valid inference from the information available.The information justifies the inference that the Crown submits I can make andI do so.[27] For sentencing purposes Mr Roulston has manufactured eight ouncesof methamphetamine.The sentencing decision[13] Judge Rollo sentenced Mr Roulston on the basis he had manufactured eightounces of methamphetamine. The Judge accepted that addiction underlay the supply9 Sentencing Act 2002, s 24(2)(c).10 Disputed facts decision, above n 6, at [23].11 At [17].12 At [24].to others, however, the presence of nearly 38 grams of methamphetamine and $23,240at Mr Roulston's address was enough to indicate there was a degree of commercialityinvolved in the offending.13 The manufacturing offence was taken as the lead offence.Applying the guideline judgment of R v Fatu,14 the Judge placed the offending in bandtwo, which covers offending warranting a starting point of between four and elevenyears' imprisonment.15 The Judge adopted a starting point of eight years'imprisonment.16 This was uplifted by one year to reflect the additional charges ofpossession and supply, a further nine months to reflect the arms charge, and anadditional three months to take account of Mr Roulston's previous drug relatedconvictions.17 Altogether, this came to 10 years' imprisonment.[14] The dispute at sentencing focussed on the deductions that were to apply.The Judge applied, in total, a deduction of 25 per cent, which incorporated 7.5 per centfor guilty pleas, 7.5 per cent for personal circumstances and 10 per cent forcooperation with the authorities.18 The resulting deduction of two and a half yearsreduced the lead sentence (for the manufacturing offending) to seven years andsix months' imprisonment.The appeal[15] Mr Roulston asserts the following grounds of appeal:(a) Judge Mabey erred in determining that the quantum ofmethamphetamine manufactured by Mr Roulston was eight ounces.(b) The global starting point of eight years' imprisonment for themanufacturing offending was manifestly excessive.(c) The reduction of 7.5 per cent to take account of the fact the offendingwas driven by addiction was insufficient.13 Sentencing decision, above n 1, at [12] and [30].14 R v Fatu [2006] 2 NZLR 72 (CA).15 Sentencing decision, above n 1, at [15].16 At [32].17 At [32]– [35].18 At [37]–[39].(d) The end sentence of seven years and six months' imprisonment wasmanifestly excessive.Submissions on appealThe disputed facts decision[16] Mr Mansfield submits there is no proof beyond reasonable doubt that overthe charge period Mr Roulston manufactured eight ounces of methamphetamine.Mr Mansfield argues that during the interview Mr Roulston made only rough estimatesas to how much methamphetamine he manufactured at any one time, and he spoke invery general terms when estimating the frequency at which he would manufacturemethamphetamine. Even so, he made it clear the outcomes were dependent on a rangeof variables. Thus, there was no basis for Judge Mabey to determine that if onemanufacture was unsuccessful Mr Roulston was likely to replace it with another,especially given that Mr Roulston says in the police video interview that things still"go wrong all the time". Moreover, during the interview it is apparent thatMr Roulston appears lethargic on account of being under the influence of drugs, whichalso affects the reliability of his admissions.[17] Mr Mansfield submits that the most that can be established is that at least twoounces were manufactured as Mr Roulston admitted to manufacturing at least once,and that one manufacture would typically produce two ounces of methamphetamine.[18] The Crown submits that it was open to Judge Mabey to infer that Mr Roulstonmanufactured eight ounces of methamphetamine because Mr Roulston had admittedthat: (a) he had been manufacturing for a few years successfully; (b) each time hemanufactured methamphetamine he produced one to two ounces; and (c) hemanufactured the drug every few months. Thus, it can be inferred that over the20-month and 26-day charging period Mr Roulston would have manufacturedmethamphetamine at least once every five months, which equates to four occasionsproducing up to two ounces, being the eight ounces identified by Judge Mabey.The Crown also reiterates the statements of Judge Mabey that the estimate of eightounces is conservative and acts in Mr Roulston's favour. Moreover, Mr Roulston'sassertion that only two ounces were manufactured is entirely inconsistent with hisadmissions and with the presence of the quantity of methamphetamine and money thatwere also located at Mr Roulston's address.[19] The Crown disputes the submission for Mr Roulston that during the interviewhe was coming down from using methamphetamine as he did not exhibit any abnormalbehaviour at the time. The Crown also argues that there is no evidence coming downfrom methamphetamine use can impede a person's memory or otherwise make aperson an unreliable witness. Rather, the Crown submits the circumstances indicatethe statements of Mr Roulston are reliable, as he understood the gravity of the situationhaving been read his rights and was told that those statements may be given inevidence at the trial. Mr Roulston also exercised a degree of care during the interview,for example, at one point he said "I'm digging myself a hole here".Discussion[20] A determination on disputed facts requires a judge to make an evaluativeassessment of the evidence. As was observed in Heke v R, this entails a determinationof relevant facts rather than the exercise of judicial discretion.19 Accordingly,the appellate court has an obligation to consider the evidence and reach its ownopinion on the facts in the dispute.20[21] The question for this Court is whether the evidence showed beyond areasonable doubt that Mr Roulston manufactured eight ounces of methamphetamineover the charging period. We consider it did not. The type of inferential reasoning inwhich Judge Mabey engaged does not lend itself to ascertaining, to the requisite legalstandard, the precise quantity of methamphetamine produced from manufacturing.This is because such reasoning rests on probabilities and estimates rather than provenfacts from which logical inferences can reasonably be drawn.[22] Mr Roulston admitted to supplying his partner and a "couple of few people".He said he sold by the "point", which is a reference to 0.1 of a gram. He admitteda point of methamphetamine sold for $100. He admitted he was not a wealthy man19 Heke v R [2010] NZCA 476 at [19].20 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [16].but, given his admitted heavy usage, he had an expensive drug habit. He agreed withthe police officer that the only way to satisfy this addiction was for him to manufacturethe drug.[23] Mr Roulston was then asked the following questions:LN Ok. And how how often do you have to cook?MR Well not very often, if I'm gonna do it, I like to do it, just one off andthen that's it, don't have to do it again for a few months.LN Ok. So you say for a few months? So would you do a, a cook onceevery second or third month? Is it, is that the frequency?MR Well it varies I suppose depending on.LN [How] fast you're going through the gear?MR All sorts, all sorts of things, availability, money.LN Yeh.MR All sorts of things.LN Yeh.MR It's not, nothing's simple.[24] The above exchange shows Mr Roulston answering in generalisations whichoffer little certainty on the frequency with which he was manufacturing the drug andthe weights he was producing.[25] There is a further exchange about the base product he uses and the equipmentfound at his property, which he says he has not used, and then the interviewing officerproceeds as follows:LN And you've told me that you manufacture once every two or threemonths. Well what quantity would you get commonly out of a cook?MR Well once yeh, couple of ounces yeh. Just usually do that thenyou know, when it runs out hopefully raise some funds to get some more.[26] However, in the earlier exchange Mr Roulston never told the police officer hemanufactured once every two or three months. That was the understanding thepolice officer gleaned from the earlier exchange; further this understanding was neveraccepted by Mr Roulston. His response was that "it varies I suppose depending on"and he proceeded to outline contingencies which might affect when he could carry outa manufacture. Further, when this partly loaded question was put to him he proceededto answer the second part of the question which asked about the quantity onemanufacture might produce, without addressing the first part of the question whichhad assumed that Mr Roulston had engaged in a cook every two to three months.[27] Following the above exchange, the police officer then asked Mr Roulston:LN Yeh. So you doing a couple of sets?MR One set.LN One set.MR Was yeh. One set. one set yeh.LN Ok, one set and you you get a couple of ounces out of that?MR (Flicks eyebrows)That is as much as Mr Roulston does to respond to the police officer's question, but itis enough in our view to constitute a confirmatory response to the question.[28] Finally, at a later stage in the interview the police officer questionsMr Roulston about his experience and ability to achieve a successful manufacture.Mr Roulston tells the police officer he has been manufacturing successfully for "onlya few years". The police officer responds:LN I'd say you'd be at the stage where you you'd have it pretty muchdown to a fine art?MR No.LN No.MR Yeh.LN You still muck up sets?MR Yeh. Yeh. Definitely. But things go, things, things go wrong all thetime.[29] This exchange confirms that Mr Roulston did not accept he was a manufacturerfor whom every manufacture produced a successful outcome.[30] The evidence the Crown had to rely upon to prove Mr Roulston manufacturedeight ounces of methamphetamine was circumstantial evidence drawn inferentiallyfrom the video interview, in particular the passages identified above, and the itemslocated at Mr Roulston's property under the search warrant. There was no directevidence to support this conclusion.[31] We accept the available evidence provides good reason to think Mr Roulstonmanufactured larger quantities of methamphetamine than the two ounces to which headmits, but we are not satisfied there was proof beyond reasonable doubt that hemanufactured eight ounces.21[32] The available evidence does, however, leave us sure that over the 20-monthand 26-day charge period Mr Roulston manufactured more than once, and that atypical successful manufacture would yield about two ounces. He was found inpossession of 37.6 grams of methamphetamine and has pleaded guilty to bothpossession for supply and supplying the drug over the same charge period as themanufacturing offence. He is also an admitted heavy user of this drug. He hasadmitted that he does not purchase the drug. This leads us to infer that the 37.6 grams(which is approximately 1.3 ounces) is the residue of at least one manufacture and thatgiven his own need for the drug he would have manufactured it at least one furthertime during the charge period. All of which establishes that over the charge periodthere must have been at least two manufactures, which would have produced at leastfour ounces of methamphetamine.[33] There is additional evidence which confirms the view we have reached.Mr Roulston was also found in possession of $23,240 in cash. There is no evidenceto suggest a legitimate source of those funds. During the police interview he admittedmethamphetamine was sold at a retail level by the point, which typically sells for $100.This indicates that he must have sold a substantial amount of methamphetamine at$100 per point. Secondly, Mr Roulston sources the drug from his manufacturing, andso when the estimated quantity for supply is added to the quantity he would require21 See R v Wanhalla [2007] 2 NZLR 573 (CA) at [49] where this Court discusses that proof beyondreasonable doubt is a very high standard.for his personal use the total quantity available to him during the charge period musthave been at least four ounces, if not more.[34] Accordingly, there is enough circumstantial evidence to leave us sureinferentially that over the charge period Mr Roulston would have manufactured at leastfour ounces of methamphetamine.[35] The conclusion we have reached on the lower quantity of methamphetaminemanufactured necessarily impacts on the sentence imposed, and so calls for it to bere-examined.[36] The appeal qualifies for consideration under this Court's new guidelinejudgment in Zhang v R.22 Four ounces is approximately 113 grams, which placesMr Roulston in the middle of band two.23[37] Under Zhang quantity of product and the role played by the offender influencethe choice of starting point. We consider six years to be within the appropriate range.The circumstantial evidence points to Mr Roulston being a small-time commercialmanufacturer and an addict who manufactures for personal use.[38] We see no error in the uplifts Judge Rollo made. Accordingly, we would upliftthe sentence by one year for the possession for supply and supply offending, with afurther uplift of nine months for the firearm offending and three months to reflectprevious related offending.24 This takes the sentence to eight years' imprisonment.[39] We turn now to the appropriate discounts. Judge Rollo gave total discounts of25 per cent. Mr Roulston contends those were not enough and greater discounts shouldhave been given, particularly for his addiction to methamphetamine. The Crowndisputes Mr Roulston is entitled to a discount for addiction, because there is noevidence other than his own statements to police and the Court to show he is an addict.22 Zhang v R, above n 8, at [188].23 At [125].24 The three-month uplift for related previous offending which was some time ago was suggested byMr Mansfield before Judge Rollo.Otherwise the Crown maintains the discounts given were generous, particularly the10 per cent discount given for cooperation with police.[40] We consider the 10 per cent discount for cooperation was appropriate. But forMr Roulston's admissions at the police interview, the police would have had to spendtime and effort to find proof to support the charges of manufacturing and supplyingmethamphetamine. The presence of 37.6 grams of methamphetamine on the propertyoccupied by Mr Roulston supported charges of possession for supply,25 but proof ofactual manufacturing and proof of actual supply to others during the charge periodwould have been more difficult to establish without Mr Roulston's admissions.[41] We consider the 7.5 per cent discount given for personal circumstances andaddiction was insufficient. We acknowledge the Crown's argument that Zhang refersto the need for persuasive proof of addiction and not simply self-reporting from anoffender.26 However, we consider that here there is more than self-reporting toestablish addiction.[42] The pre-sentence report refers to Mr Roulston's previous history of drugrelated offending and describes him as "by any measure, a man with a significant issuewith methamphetamine". The report refers to Mr Roulston's troubled early familybackground and his mother's comments that he first used alcohol and then illegal drugsto self-medicate, which is a feature of methamphetamine use referred to in Zhang.27Further, the police interview proceeded on the basis that Mr Roulston was someonewho could not financially support his drug habit without resorting to manufacturingmethamphetamine for his own use. This was used by the police officer to questionMr Roulston further about the scope and regularity of his manufacturing. The personalfactors that warrant a discount must be balanced against the presence of thecommercial features of Mr Roulston's offending, being his admissions of supplyingothers, the quantity of methamphetamine found at the property and the presence ofelectronic scales. After taking all the relevant factors into account we consider adiscount of 10 per cent is appropriate.25 Misuse of Drugs Act, sch 5.26 Zhang v R, above n 8, at [148].27 At [145].[43] The discounts so far reduce the sentence to six years and five months'imprisonment. There is then the discount for a guilty plea.28 Judge Rollo referred tothe guilty plea being entered late, and the contribution Mr Roulston made to that byhis absconding while on bail during the course of the trial, but nonetheless gave a7.5 per cent discount for the guilty pleas. We consider this was too generous in thecircumstances; we find that here no more than a five per cent discount is warranted.This reduces the end sentence on the manufacturing offending to six years'imprisonment, rounded down.[44] The focus on appeal was on the manufacturing sentence and no complaint wasmade about the other sentences, which are concurrent with the manufacturingsentence. Accordingly, these stand.Result[45] The appeal against the sentence for manufacturing methamphetamine isallowed. The sentence of seven years and six months' imprisonment is set aside andin substitution Mr Roulston is sentenced to six years' imprisonment.[46] The sentences imposed by Judge Rollo on the other offences stand.[47] All sentences are to be served concurrently.Solicitors:Crown Law Office, Wellington for Respondent28 In accordance with R v Clifford [2011] NZCA 360, [2012] 1 NZLR 23 at [60], we have left theguilty plea discount to the final step in the sentencing process.