JOHNSON v R [2022] NZCA 175

JOHNSON v R [2022] NZCA 175 [11 May 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA529/2021[2022] NZCA 175BETWEEN PAUL MALCOLM JOHNSONAppellantAND THE QUEENRespondentHearing: 30 March 2022Court: Gilbert, Woolford and Dunningham JJCounsel: W D McKean for AppellantM Davie for RespondentJudgment: 11 May 2022 at 9 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Dunningham J)[1] The appellant, Mr Johnson, was found guilty, by a jury, of conspiring withtwo others to smuggle methamphetamine into prison to supply to a fellow inmate.1[2] Mr Johnson appeals his conviction, saying the verdict was unreasonable.If the conviction stands, he appeals his sentence on the grounds the Judge was wrong1 R v Johnson [2021] NZDC 15464 [Sentencing judgment].to sentence on the basis the conspiracy involved the whole 13.92 grams found on oneof the co-defendants.2Background facts[3] In 2019, Mr Johnson was an inmate at Northland Regional Corrections facility.He had a girlfriend who would visit him in prison, Ms Shinae Twist. Also serving asentence at the prison was Mr Leigh Tito. He, too, had a girlfriend who visited him inprison, Ms Te Whakaiti Apiata. The prisoners would have either contact, ornon-contact (booth), visits with their visitors. The Crown case was that the appellantconspired with Ms Twist and Ms Apiata to bring methamphetamine into the prison tosupply his fellow inmate, Mr Tito. This was because Mr Tito was not going to have acontact visit with his girlfriend, but Mr Johnson was, so he and Ms Twist were to beused as a conduit to get the drugs to him.[4] The Crown case was supported by the content of telephone conversations theappellant and Mr Tito had with their respective girlfriends. On the morning of13 May 2019, the day of a planned visit, Mr Tito gave Ms Twist's phone number tohis girlfriend saying, "That's Shinae. She's coming up. She's coming up from Aucks.Get a hold of her and meet up with her?" Mr Tito then asked his girlfriend: "[C]an youjust give her something for me some fucken shit. Just a little bit, please".He continued, saying "she's gonna, she's gonna be a visit (sic) too. Visit the bro. Can you tee up with her please?"[5] On the same day, Mr Johnson spoke to his girlfriend, Ms Twist, on severaloccasions. He gave her Ms Apiata's phone number and name and said to her, "it'sthe bros missus". In the next call, he asked Ms Twist to ring Ms Apiata saying, "costhey're coming to visit too". There was then an oblique reference to her acquiringsomething, saying, "[y]ou shouldn't have to pay for those", and "I think it wasthe bro's shout anyway". In respect of their visit later that day, the appellant said"[a]pparently we get the whole visit room to ourselves". He also checked that2 The other grounds on which the sentence was appealed, being failure to adjust for totality and notimposing the sentence concurrently with his existing sentence, were not pursued at the hearing.Ms Twist was going to have a coffee with "the bro's missus" in Kawakawa on her tripto the prison, and Ms Twist confirmed she was.[6] Mr Tito then rang Ms Apiata again, this time using the appellant's prisonPIN number. He said, "[c]an you just give her a little bit to um. She's gonna fuckenbring it in for the bro". Ms Apiata then asked "[a]re we on a booth visit, or what arewe doing?" to which Mr Tito replied "[a]h I wish, nah, nah I'm, I'm off to the unitafter this so we might on a booth visit but we'll definitely get contact after the visit".When she asked, "why am I doing this?" he said, "so I can get some shoes and a fewthings in here. That's all just like whatever. Just a little bit. Just for me. If you can.Cos they're getting them for 3 each". Ms Apiata said "I'm pushing them for 6", towhich Mr Tito replies, "I know you are. Has she got any money on her?" Near the endof the same conversation Mr Tito repeated "[n]ah it's just something for me yeah Idon't wanna say too much. But if you can just give some to her for me please darling".[7] Later that day, Ms Apiata and Ms Twist arrived at the prison in Ms Apiata'svehicle. Ms Apiata had 13.92 grams of methamphetamine taped inside a baseball capshe was wearing. The vehicle was searched, but nothing was located.When Ms Apiata and Ms Twist entered the prison, they were told by prison officersthat they were both to have non-contact visits with their respective boyfriends.Both women were upset by this news. Ms Apiata then returned to the vehicle, leavingthe cap there before returning to the prison where they each had visits with theirrespective partners. When the two women came to leave the prison carpark,the officers again attempted to search the vehicle. Ms Apiata did not co-operate andtried to remove the red cap from the vehicle. There was a scuffle, and the prisonofficers took the cap from Ms Apiata. Inside it, they found the concealedmethamphetamine.The District Court hearing[8] Mr Tito was charged with conspiring to supply methamphetamine. He pleadedguilty following a sentence indication. The appellant pleaded not guilty, and the caseproceeded to a jury trial.[9] The Crown case was that Ms Twist, Ms Apiata and the appellant agreed tosupply methamphetamine to Mr Tito, and that this agreement was formed during thephone calls which took place before the two women arrived at the prison. The Crowncase hinged on the fact that Ms Apiata and Mr Tito knew in advance they were to havea non-contact visit, whereas the appellant and Ms Twist were to have a contact visit.It was for this reason Ms Apiata was directed to give the drugs intended for Mr Tito toMs Twist, who would then give them to Mr Johnson during their contact visit.[10] The Crown called two prison officers as witnesses to establish that Mr Tito andMs Apiata were to have a non-contact visit that day. However, the Crown's firstwitness, prison officer Webb, did not accept that, saying: "My understanding was theywere supposed to have been contact visits. They both ended up being bothbooth-visited." Officer Fenton, however, gave contrary evidence, saying thatMs Apiata was scheduled for a non-contact visit with Mr Tito, whereas Ms Twist wasto have a contact visit with the appellant. She also said, "Ms Apiata was aware thatshe was having a non-contact. Ms Twist did not know until I informed her that the visithad now become a non-contact."[11] Mr McKean, for the appellant, noted, however, that when the trial Judgequestioned Ms Fenton on whether it had previously been established that Mr Tito andMs Apiata were to have a non-contact visit or whether that was a response to the riskof contraband being brought in, she did not know.[12] At the conclusion of the prosecution case, Mr McKean made an application onMr Johnson's behalf to have the charge dismissed under s 147 Criminal Procedure Act2011, relying on the conflicting evidence of the two prison officers. The Judgedeclined the application saying it would be for the jury to decide which evidence theyprefer and, in any event, the phone calls, viewed as a whole, supported the Crown'scase.33 R v Johnson [2021] NZDC 12008 at [11] and [17].The law[13] To succeed on the conviction appeal, the appellant must show that, havingregard to the evidence, the jury's verdict was unreasonable.4 In R v Owen, the SupremeCourt discussed the approach to such appeals, saying:5There is, in the end, no need to depart from the language of Parliament.The question is whether the verdict is unreasonable. That is the question theCourt of Appeal must answer. The only necessary elaboration is thatexpressed earlier, namely that a verdict will be unreasonable if, having regardto all the evidence, the jury could not reasonably have been satisfied tothe required standard that the accused was guilty.[14] In deciding whether a verdict is unreasonable, the following principles apply:6(a) The appellate court is performing a review function not one ofsubstituting its own view of the evidence.(b) Appellate review of the evidence must give appropriate weight to suchadvantages as the jury may have had over the appellate court.Assessment of the honesty and reliability of the witnesses is a classicexample.(c) The weight to be given to individual pieces of evidence is essentially ajury function.(d) Reasonable minds may disagree on matters of fact.(e) Under our judicial system the body charged with finding the facts isthe jury. Appellate courts should not lightly interfere in this area.(f) An appellant who [seeks to appeal a jury verdict] must recognise thatthe appellate Court is not conducting a retrial on the written record.The appellant must articulate clearly and precisely in what respect, orrespects, the verdict is said to be unreasonable and why, after making4 Criminal Procedure Act 2011, s 232.5 R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].6 R v Owen, above n 4, at [13], endorsing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.proper allowance for the points made above, the verdict shouldnevertheless be set aside.[15] We now apply these principles to the facts as outlined above, and in light ofthe submissions made on behalf of the appellant.Submissions for the appellant[16] The appellant's case largely turned on what he says is the lack of evidence thatMr Tito and Ms Apiata knew they were to have a booth visit, and thus requiredthe appellant to be the conduit for bringing the drugs in because his visit was to be acontact visit. Mr McKean says that Crown witnesses on this issue did not come up tobrief. One of the prison officers was emphatic that both Mr Johnson and Mr Tito wereto have contact visits, and while the second prison officer confirmed Mr Tito was tohave a non-contact visit, she was, in Mr McKean's submission, unclear as to whetherMr Tito and Ms Apiata would have understood that.[17] Mr McKean says without this plank of the Crown case, the Crown could notexclude the reasonable possibility that the drugs the appellant organised with Ms Twistto bring into prison were for him alone. Therefore, the Crown could not prove, tothe required standard, there was a conspiracy to supply Mr Tito.[18] While the Judge relied on the content of the associated phone calls to say therewas still sufficient evidence for the charge to go to the jury, Mr McKean says the phoneconversations were, at best, equivocal as to whether:(a) Mr Tito and Ms Apiata understood he was to have a booth visit; and(b) the drugs were to be supplied to Mr Tito, rather than simply tothe appellant.[19] Mr McKean relies, in particular, on the third telephone conversation betweenMr Tito and Ms Apiata, where Mr Tito says "[b]ut if you can just give some to her forme, please darling". Mr McKean submits that, in the context, the words "for me" areasking Ms Apiata to do a favour for Mr Tito, rather than saying the drugs were forhim. This is reinforced when he later says "it's for the bro". Mr McKean suggeststhe statement by Mr Tito that it was "so I can get some shoes and a few things in here"also supports the suggestion that he was asking her to bring drugs in for Mr Johnsonas a favour for him, and which would have a benefit for him in terms of obtainingsome traded items of property. Mr McKean says the query by Mr Tito as to whetherMs Twist has "got any money on her?" suggests she will have to pay for the drugs andis inconsistent with the drugs being smuggled in for Mr Tito.[20] Finally, Mr McKean suggests that the telephone conversation shows thatneither Ms Apiata or Mr Tito knew whether she was to have a contact visit withMr Tito, with Mr Tito saying "we will definitely get contact after the visit".[21] For these reasons, Mr McKean submits that the content of the phoneconversations did not overcome the inconclusive evidence of the two prison officersas to whether Mr Tito and Ms Apiata were to have a non-contact visit and, therefore,whether the appellant was needed to act as a conduit to supply Mr Tito. Instead, hesays the conversations could equally be seen to be Mr Tito arranging for Ms Apiata togive Ms Twist a little bit of methamphetamine to pass on to the appellant as a favourto Mr Tito. Equally, from the appellant's perspective, "it was the bro's shout" andMs Twist should not have to pay for it.Discussion[22] At the heart of the appellant's appeal is his assertion the Crown case dependedon Mr Tito and Ms Apiata knowing they would not have a contact visit, which is whythey involved Mr Johnson and Ms Twist to supply the methamphetamine to Mr Tito.And that the evidence on that point was simply so slender that no reasonable jury couldhave reached the view that the appellant intended to supply methamphetamine toMr Tito.[23] We do not agree. The evidence must be looked at in totality to see whether ajury could reasonably infer that Mr Tito did not believe he could be supplied directlyand so arranged for Mr Johnson and Ms Twist to be involved.[24] First, we consider there was sufficient evidence to support a finding thatMr Tito thought he would have a non-contact visit. Ms Webb, the first prison officer,simply spoke of her own understanding that both couples would have contact visits.She was a member of the emergency response team, and there is no evidence she wasinvolved in the decisions which governed the planning for such visits. However, thesecond officer, Ms Fenton, was clear that at the start of the day, she understood Mr Titowas to have a non-contact visit, whereas Mr Johnson was to have a contact visit.The phone calls all occurred on the day of the visit, starting at 10.49 am and ending at2.10 pm, so the concerns they raised with prison staff about contraband beingsmuggled in could only have influenced the decision to make both visits non-contactat a later point in the day.[25] However, in our view, the understanding of the prison officers was not asrelevant as the understanding of the prisoners themselves, in particular, Mr Tito.In that regard, the phone conversations support the Crown case. When Ms Apiata asksMr Tito what type of visit they will have, Mr Tito says "[a]h I wish, nah, nah, I'm offto the unit after this, so we might (sic) on a booth visit but we'll definitely get contactafter the visit." The "unit" is a reference to a "punishment" or management unit, whichsupports the fact he expects this visit will be on strict terms, and although he wishes itwould be a contact visit, it will not be. The reference to getting contact after the visit,in context, logically refers to a subsequent visit and does not contradict his statementthat there will not be a contact visit that day.[26] When the evidence is looked at in its entirety, we are satisfied there was asufficient basis for the jury to conclude Mr Tito knew he would not get a contact visitand thus, if he was to obtain some methamphetamine, it needed to be withthe assistance of Mr Johnson and Ms Twist, as they were scheduled to have a contactvisit.[27] That leads into the second issue, which is whether the evidence shows anintention to supply to Mr Tito or simply to the appellant. Mr McKean suggested thatthe evidence pointed to this being a purchase by the appellant which Mr Tito was"shouting" him and, in return, he would get "some shoes and a few things in here".[28] However, again, it is clearly a jury question as to whetherthe methamphetamine is being arranged by Mr Tito as a "shout" for Mr Johnson, orwhether he is arranging it for himself, with a small cut to go to Mr Johnson as paymentfor the favour. The latter version is clearly available on the evidence. Mr Tito's callsto Ms Apiata say "can you just give her something for me" on at least two occasions,which can reasonably be taken to mean he will be the recipient of the contraband,brought in using Mr Johnson and Ms Twist.[29] Secondly, as the Crown points out, there was no obvious reason why Ms Apiataand Mr Tito would want to smuggle the drugs for Mr Johnson's benefit, particularlygiven the value of the drugs (being at least $3,000) and the personal risks involvedwith this activity. Conversely, the scenario where Mr Tito was the ultimate recipientof the drugs makes sense. He wanted the drugs to trade for other items. Ms Apiatawanted to help Mr Tito. Mr Johnson could benefit from the deal by acting as amiddleman and Ms Twist wanted to help him.[30] Taking all these factors into account, we are satisfied there was a sufficientevidential foundation for the jury to find that the appellant had agreed to supplymethamphetamine to Mr Tito, and its verdict of guilty was not unreasonable.Prejudice[31] As a subsidiary ground of appeal, Mr McKean also submitted there was a realrisk of prejudice against the appellant in the trial because he was a prison inmate andhe was accepting that he brought methamphetamine into prison. Mr McKean says themembers of the jury were not able to overcome that prejudice, and that contributed tothem finding him guilty, despite the lack of evidence to show he was part of aconspiracy to supply.Discussion[32] In her opening remarks, the Judge gave an orthodox and thorough directionabout prejudice which was specifically aimed at countering this risk.She acknowledged that the jury would hear that the appellant was a prisoner at the timeof the alleged offending but said "[t]hat is only relevant because it is an essential partof the circumstances in which the offence is alleged to have been committed". Shewent on to say:What you must not do is reason that because Mr Johnson was in prison at thattime, he must be a criminal and so he must have committed the offence withwhich [he is] charged now, or at least that it is more likely he did, so you mustnot be prejudiced against him simply because of that. That would be quitewrong, because what you are here to do is to decide if the evidence relating tothe alleged offending proves that he committed that offence.She then gave an example of impermissible reasoning and reminded the jury that theyhad to approach the evidence "dispassionately".[33] Similarly, in her summing up the Judge made particular reference tothe appellant's status as a prisoner and other adverse evidence about him, giving aclear direction that it was irrelevant to the jury's decision and must be put "firmlyaside".[34] We are satisfied in the circumstances there is no substance to this ground ofappeal.Sentence appeal[35] The appellant was sentenced on 30 July 2021.7 The Judge took a starting pointof three years and one month's imprisonment. She observed that "withoutMr Johnson's willing co-operation and basically acting as the organiser, none of thiscould have taken place".8 She considered an aggravating feature of the offending wasthat it was intended the drugs be smuggled into a prison. Such behaviour underminedthe rehabilitative programmes the prison was trying to run and also undermined prisondiscipline. She also stated that the amount involved was 13.92 grams, notwithstandingthe statements in the telephone communications which suggested the amount wasgoing to be small.9[36] In terms of mitigating factors, the Judge gave the appellant a 10 per centdiscount for personal circumstances. She also adjusted for totality with his existing7 Sentencing judgment, above n 1.8 At [11].9 At [18].sentence, to bring the end sentence down to two years and three months'imprisonment.[37] The only ground pursued on appeal against sentence is that the Judge wronglyconcluded the conspiracy involved supply of all 13.92 g of methamphetamine foundin Ms Apiata's cap as opposed to "a little bit". Mr McKean says the Crown neverasserted this and, furthermore, the Judge specifically directed the jury that to findMr Johnson guilty they only needed to be satisfied that the methamphetamine "or atleast part of it" was intended for Mr Tito.[38] In Mr McKean's submission, it was incumbent on the Judge, at sentencing, tomake her own assessment of what the evidence proved. In that regard, CorrectionsOfficer Webb said she regarded the amount in the cap as a significant amount ofmethamphetamine.10 Similarly, Detective Senior Sergeant Bindon said the amount inthe cap was significant, valued between $3,000 and $6,000. However, the phoneevidence was that Mr Tito asked Ms Apiata to give Ms Twist "a little bit", andMr Johnson said to Ms Twist that she would not have to pay for it; it was the "bro'sshout". In Mr McKean's submission, this evidence was not consistent with theagreement being to bring in half an ounce of methamphetamine. While the Judge saidthat the only drugs were those found on Ms Apiata, Mr McKean suggests it wasspeculative to say Ms Twist did not have drugs on her as she was not searched. It waspossible that Ms Twist was in fact given "a little bit", which she did not have to payfor, rather than that she was going to receive the whole value of the drugs in the cap.Mr McKean says that, because the Judge held the conspiracy was to bring in the totalamount of the drugs in the cap, and treated it as an aggravating feature of the case, andthe appellant disputed it, the Crown had to prove it beyond reasonable doubt. He saidthe evidence did not justify the finding to that standard that all the drugs in the capwere to come into prison.10 Although in submissions Mr McKean said she called it a "mother load (sic)", she denied usingthat description.Discussion[39] In our view, the Judge correctly assessed the quantity of methamphetamineinvolved as being 13.92 g but acknowledged that not all of it would go to Mr Tito.Mr Johnson would retain some for himself as payment for his assistance in thisarrangement.11 We agree with the Crown that the proposition thatthe methamphetamine to be supplied was another, unknown quantity, possibly carriedby Ms Twist, lacks an evidential foundation. The Crown case was that the conspiracyinvolved the 13.92 g in Ms Apiata's cap, and clearly the jury was satisfied as to that.While the appellant was to receive an unknown amount for assisting, we do notconsider this affects the correctness of the Judge's decision to say the conspiracyinvolved the whole 13.92 g. It was a necessary part of the deal that the defendantswere involved in that a portion would be received by Mr Johnson in payment for hisassistance. In short, the only evidence of methamphetamine was the amount found inthe cap, and it was logical that the Judge relied on this as being the amount involvedin the conspiracy for supply.[40] In all other respects, there can be no criticism of the sentence. While theappellant's written submissions asserted the Judge did not take into account totality, itwas clear she did and applied a deduction for that. The end sentence could not beconsidered out of all proportion to the gravity of the overall offending. Similarly, theJudge's decision to impose a cumulative sentence, when Mr Tito's sentence wasimposed concurrently, did not affect the appropriateness of the appellant's sentence.The Judge was obliged to impose a concurrent sentence on Mr Tito by s 83(2) ofthe Sentencing Act 2002. That provision did not apply to the appellant, and there wasno error in imposing a cumulative sentence, particularly when it was adjusted fortotality.Result[41] The appeal against conviction and sentence is dismissed.11 Sentencing judgment, above n 1, at [2].Solicitors:Webb Ross McNab Kilpatrick Ltd, Whangārei for AppellantCrown Law Office, Wellington for Respondent