HINES v R [2018] NZCA 242

HINES v R [2018] NZCA 242 [6 July 2018]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA267/2017[2018] NZCA 242BETWEEN WILLIAM HINESAppellantAND THE QUEENRespondentHearing: 14 May 2018Court: Miller, Ellis and Woolford JJCounsel: G C Gotlieb and J G Krebs for AppellantRMA McCoubrey and FMT Culliney for RespondentJudgment: 6 July 2018 at 10 amJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is allowed. The sentence of 18 years and sixmonths' imprisonment is quashed and a sentence of 17 years'imprisonment is substituted.C The minimum period of imprisonment of eight years and four months isquashed.____________________________________________________________________REASONS OF THE COURT(Given by Ellis J)[1] Following a trial before Downs J and a jury, Mr Hines and eight others wereconvicted of a number of serious methamphetamine related offences. The Judgesentenced the offenders on the basis that each of them had, in various ways, beenresponsible for manufacturing approximately one kilogram of methamphetamine in2015. As the perceived architect of the group, Mr Hines was sentenced to 18 and ahalf years' imprisonment. The Judge imposed a minimum period of imprisonment(MPI) of eight years and four months.1[2] Mr Hines and six of his co-defendants appealed their convictions, andMr Hines and five of his co-defendants appealed their sentences. The appeals of allbut Mr Hines were heard by this Court on 10 October 2017.2 Judgment was deliveredon 20 December 2017 (the earlier judgment).3 All of the conviction appeals weredismissed but the sentence appeals by three of the group were allowed.[3] The majority of the points raised by Mr Hines in relation to his convictionappeal have, effectively, been dealt with in the earlier judgment. For that reason, weare able to deal with them relatively briefly here.[4] As far as the sentence appeal is concerned, the reduction in sentence allowedin the earlier decision for two of Mr Hines' co-defendants necessarily has an impacton Mr Hines' position.4 This Court's reasoning that there had been an element ofdouble counting in their sentences applies equally to Mr Hines.5 As well, there areunique circumstances relating to Mr Hines' health which also merit greaterconsideration in a sentencing context. Accordingly, those issues will be the principalfocus of this judgment.[5] Before turning to consider these matters, however, it is necessary to say a littlemore by way of background. What follows is largely taken from the earlier judgment.1 R v Hines [2017] NZHC 769 at [26].2 Mr Hines' appeal was not heard then due to his health issues.3 Edwardson v R [2017] NZCA 618.4 Messrs T Maaka and Sadler. A third co-defendant, Mr Vijn, also successfully appealed hissentence, but the Court's reasons for allowing his appeal are not relevant to Mr Hines' appeal.5 Edwardson, above n 3, at [146]–[147] and [161]–[163].Background[6] The relevant aspects of the Crown case against all defendants can be dividedinto two parts:(a) manufacturing methamphetamine on the evening of 18 April 2015and/or the morning of 19 April 2015; and(b) the storage unit.Manufacturing of methamphetamine on or about 18 April 2015[7] The charges have their foundation in a police investigation which focused uponthe suspected manufacture and distribution of methamphetamine by members of theEast chapter of the Head Hunters Motorcycle Club (the Head Hunters). Mr Hines wassaid to be the leader of the group. He, together with Mr Te Here Maaka (Mr T Maaka),Mr Falco Maaka (Mr F Maaka) and Mr Sadler were patched members of the gang.Mr Edwardson (Mr Sadler's father) was a prospect. Mr Vijn and Mr Atkinson wereassociated with members of the Head Hunters.[8] The principal evidence obtained by police as a result of their investigationcomprised intercepted telephone communications between 26 March 2015 to26 July 2015 and the results of visual surveillance of the targets.[9] The Crown case at trial was that Mr Hines, the two Messrs Maaka,Mr Edwardson and Mr Sadler worked together to source the materials required tomanufacture methamphetamine and that Mr Vijn assisted by obtaining toluene and awater distiller to be used in that process. The Crown said that Mr Atkinson was the"cook" and that the manufacturing process took place on the evening of 18 April 2015and/or the morning of 19 April 2015 at a Glen Eden property. That property was ownedby a friend of Mr T Maaka. The Crown alleged that, following the cook, the group'sintention was to arrange for the distribution of the resulting methamphetamine. It wasalleged that the cook resulted in one kilogram of methamphetamine.[10] It was accepted that on 10 April 2015, Mr Sadler obtained 20 sets of Contac-NTfrom a Mr Sun.6 There was expert evidence that the quantity of Contac-NT suppliedby Mr Sun to Mr Sadler could have yielded about one kilogram of methamphetamine.[11] The intercepted communications involving Mr Sadler, Mr Edwardson andMr Hines indicated a heightened level of activity between 10 April 2015 and18 April 2015. The Crown accepted it was not possible to identify exactly what wasbeing discussed during this period but submitted that the conversations were consistentwith preparations for a significant event.[12] Intercepted conversations on 18 April 2015 and the early hours of19 April 2015 laid the foundation for the Crown case that methamphetamine wasmanufactured at that time at 36 Withers Road.[13] No methamphetamine was ever located at the Glen Eden address. When thehouse was forensically examined on 28 July 2015, it was found to have containedmethamphetamine residue at a level 10 times higher than the highest levels that wouldbe expected if methamphetamine had simply been smoked in that property.The storage unit[14] On 4 June 2015, the police executed a search warrant at a storage unit inPanmure. Inside the unit the police found a black van registered in the name of acompany owned by Mr Vousden, another of the defendants at trial. Inside the van was:(a) 136.5 grams of methamphetamine packaged in five one-ounce bagsvalued at approximately $60,000;(b) approximately 33 litres of hypophosphorous acid valued atapproximately $65,000;(c) nine kilograms of iodine valued at somewhere between $9,000 and$45,000;6 At trial Mr Sun's convictions for other drug offences were the subject of an agreed statement unders 9 of the Evidence Act 2006.(d) five firearms, including a revolver wrapped in a bandana; and(e) a large quantity of ammunition.[15] No fingerprints were found on the van or its contents. But DNA extracted froma bandana wrapped around the revolver matched Mr Hines' DNA profile.7The Crown's case was that these items were in the possession of Mr Hines, Mr Sadler,Mr T Maaka and Mr Edwardson.[16] There was evidence that Nadine Stone, a friend of Mr Sadler and anacquaintance of Mr T Maaka, rented the storage unit on 18 April 2015, the same daymethamphetamine was said to have been manufactured at 36 Withers Road.The manager of the storage unit recalled two Māori men driving the van into thestorage unit approximately two hours after Ms Stone had signed the papers to rent theunit.[17] A number of intercepted communications linked Mr Sadler and Mr T Maakato the storage unit. Further intercepted communications between Mr Edwardson andMr Sadler on 28 May 2015 were to the effect that Mr Edwardson had told Mr Sadlerthat he had been going to the unit.[18] The police arrested Ms Stone on 4 June 2015. That sparked a series ofcommunications between Mr Edwardson and Mr Sadler, during which Mr Sadlerasked Mr Edwardson if he "[got] rid of it". Mr Edwardson replied he was trying to.In a conversation involving Mr Hines, Mr Edwardson, Mr Sadler and Mr T Maakalater that evening Mr Hines commented that Ms Stone and Mr Sadler would be inprison "for a long time". Mr Sadler and Mr Edwards later discussed what Ms Stonemight have said to police.The High Court trial[19] After a five-week trial Mr Hines was found guilty on the following tencharges:87 DNA belonging to another person was also found on the bandana.8 R v Hines, above n 1, at [1].(a) manufacturing methamphetamine;(b) possessing methamphetamine for the purpose of supply;(c) possessing materials relating to the manufacture of methamphetamine;(d) possession of a firearm for other than some lawful, proper and sufficientpurpose (x 5);(e) possession of ammunition for other than some lawful, proper andsufficient purpose; and(f) participation in an organised criminal group.[20] He was found not guilty on two charges of money laundering and wasdischarged on other charges at the conclusion of the prosecution case.9Sentencing[21] At sentencing, Downs J treated the manufacturing as the index charge. As tothe quantity of methamphetamine that had been manufactured he said:[4] I am sure at least one kilogram of methamphetamine was made.I reach this conclusion for eight reasons. First, manufacture occurredeight days after Mr Jia Sun supplied 4.46 kilograms of Contac-NT toMr Sadler, your second-in-charge. This figure is known because theintercepted communications refer specifically to 20 sets of Contac-NT.Second, Mr Sun dealt in large amounts of that substance. Third, much timeand effort were dedicated to this operation, in turn implying manufacture on asubstantial scale. So too personnel vis-a-vis gang members under yourdirection. Fourth, Mr Atkinson, an experienced cook, was enlisted as anindependent contractor. Fifth, there was nothing in the interceptedcommunications to imply dissatisfaction with his work. Sixth, conversion of20 sets or 4.46 kilograms of Contac-NT to methamphetamine would typicallyproduce between 900 grams and 1.3 kilograms of methamphetamine.Mr Atkinson was an experienced cook. Seventh, 136.5 grams ofmethamphetamine was found in a storage unit in early June 2015. Whereasyou (and other defendants) submit this was all that was made, it is inherentlyunlikely the bulk of the methamphetamine had not already been disposed of.I reach this conclusion notwithstanding the absence of specificcommunications in relation to distribution. Relevantly, that unit was rentedon 18 April, the same day as the manufacture. Eighth, the case against9 At [2].Mr Sadler was that he was a party to manufacture largely because of his rolein obtaining 20 sets of Contac-NT from Mr Sun.[22] Downs J was of the view that Mr Hines instigated the manufacturing in his roleas a leader of the Head Hunters' East chapter. Mr Hines led an organised criminalenterprise involving careful packaging, the collection of the items necessary for themanufacture and the rental of the unit on the same day as the manufacture.10 AlthoughMr Hines was not present during the actual process, he was kept informed ofprogress.11 His DNA was found on the bandana around one of the firearms.12 Whileone of his co-defendants was in prison, Mr Hines was recorded as emphasising to himhe did not want the police taking what was inside the unit.13[23] The Judge found that Mr Hines' offending fell "firmly" within band four ofR v Fatu.14 He observed that his placement within that band depended not just on thequantity of methamphetamine but on the part he played in the manufacture.15 Havingregard to the amount made, Mr Hines' "apex role" and the gang dimension, Downs Jadopted a starting point of 16 years' imprisonment.16[24] That starting point was uplifted by three and a half years to represent the"storage unit" offending,17 and another six months to reflect Mr Hines' "extensive"criminal history which included previous offences against the Misuse of DrugsAct 1975.18[25] Downs J noted Mr Hines' poor health; that he was (then) 64 years old, hastype-two diabetes and end-stage renal failure. He suffers heart disease and requiresregular dialysis.19 The Judge noted ill-health can operate to mitigate an otherwiseappropriate sentence, particularly where the defendant would suffer more than anordinary person in prison because of his condition. He noted that Mr Hines could not10 At [8].11 At [5].12 At [6].13 At [7].14 At [10], citing R v Fatu [2006] 2 NZLR 72 (CA).15 At [10].16 At [12].17 At [16].18 At [17].19 At [19].receive dialysis with optimal regularity (every other day) while in prison, that he findsit tiring travelling the short distance between the prison and hospital, and that hisimprisonment makes it unlikely Mr Hines will be eligible to receive a kidneytransplant which affects his life expectancy.20 For these reasons Downs J reducedMr Hines' sentence by 18 months' imprisonment (eight per cent).21[26] Taking into account the nature and seriousness of Mr Hines' offending, his"apex" role in an organised criminal enterprise, criminal history and the risk of harmposed to the community, Downs J imposed an MPI of eight years and four months'imprisonment (45 per cent of Mr Hines' sentence).22 The Judge made it clear that hewould have imposed a minimum period of 55 per cent had it not been for Mr Hines'health issues.[27] Mr Hines end sentence was therefore one of 18 and a half years' imprisonmentwith a minimum period of eight years and four months.23Conviction appeal[28] In written submissions filed in 2017, counsel for Mr Hines on appeal,Messrs Gotlieb and Krebs (neither of whom were involved in the trial) articulated hisgrounds of appeal against conviction as follows:(a) His Honour when giving his direction concerning circumstantial/evidence of inference failed to sufficiently stress the need for the juryto resist speculation and did not address or direct the jury as to howthey should approach a case where more than one inference isreasonably available on the evidence. This despite being requested bycounsel to do so;(b) The learned Judge's direction against prejudice was insufficientlystrong given the central focus of the Crown case on the fact that theappellant was a gang member and the president thereof;(c) His Honour was wrong to admit evidence of Detective SeniorSergeant McNaughton that the appellant was:(i) At least a co-leader in the relevant period with anothergang member, Wayne Doyle; and20 At [20].21 At [22].22 At [25].23 At [26].(ii) The east chapter operated under the auspices of acommittee comprised of Mr Doyle and Mr Hines;(d) Having admitted that evidence His Honour indicated in a bench notethat he gave the jury a warning against prejudice in relation to gangsimmediately prior to the evidence being given. The wording of HisHonour's warning is not recorded in either the bench note nor in thenotes of evidence and has been requested from the Court. Theappellant may wish to address the adequacy of such warning once itis known exactly what the Judge has said.[29] Since the filing of those submissions, however, this Court has heard anddetermined the appeals of Mr Hines' co-offenders.24 And as noted earlier, in doing sothe Court has effectively dealt with several of Mr Hines' appeal points and on thosematters we can therefore be brief. We nonetheless address each of the points in turn.Inferences[30] Mr Gotlieb said, and we accept, that the case against Mr Hines was largely acircumstantial one. In essence, its success principally depended on the jury acceptingthe guilt of the other defendants (and, in particular, Mr Sadler, Mr T Maaka andMr Edwardson) and that they acted at the direction, and under the control, of Mr Hines.That was a matter of inference which (the Crown said) could be drawn from:(a) the evidence of Detective Senior Sergeant McNaughton (discussed laterbelow) that Mr Hines was one of the two leaders of the East chapter ofthe Head Hunters, of which Messrs Sadler and Maaka were patchedmembers and Mr Edwardson was a prospect; and(b) intercepted communications which showed the three men deferring toMr Hines and following his orders.[31] Inferences about Mr Hines' more general involvement in the offending weresaid to be available from the evidence of his DNA on the bandana and the evidence ofMr Hines' direct involvement with the known drug dealer, Mr Sun, who was said tohave supplied mobile phones to Mr Hines and others in the group as well as the 20 setsof Contac-NT used in the manufacturing.24 Edwardson v R, above n 3.[32] Mr Gotlieb said that part of the defence case was that the available evidencecould reasonably support a number of different inferences, some of which werefavourable (or at least not unfavourable) to Mr Hines. He was critical of Downs J forfailing sufficiently to stress the need for the jury to resist speculation and refusing arequest by Mr Hines' counsel to direct them about what they should do where morethan one inference is reasonably available on the evidence.[33] This issue has already been addressed by this Court in its earlier decision. Afternoting early in the judgment that the Judge's directions on circumstantial evidence andinferences were orthodox and that the jury had been told on three separate occasionsnot to speculate,25 the Court returned to address the topic in more detail later on:[75] As we have already stated, the Judge gave an orthodox direction oncircumstantial evidence and inferences in his summing-up noting the jurywere entitled to draw inferences, but not to guess or speculate. After the juryhad retired to consider their verdict, the Judge noted, as a matter arising, thefollowing:When the jury retired to commence their deliberations,Mr Holland on behalf of Mr Hines submitted becausethe Crown case was circumstantial in nature, a distinctionneeded to be drawn between the proper drawing of an inferenceand speculation, and hence I should direct the jury that wheretwo inferences were of equal weight, they should draw theinference favourable to the defendant. I decline to do so on thebasis of R v Puttick, and its progeny.[76] Ms Smith accepted that to the extent that the Judge declined to give aredirection in terms disapproved by the Court of Appeal in R v Puttick and itsprogeny, the decision could not be faulted. However, Ms Smith submittedthe Judge ought to have gone further in the case of Mr Vijn by insistingthe jury should reach a position as contended for by the defence where it hada range of inferences available — some favourable and some unfavourable.[77] Where two or more inferences are possible based on the facts,this Court has confirmed that a trial Judge does not need to direct a jury toadopt the inference most favourable to the defendant. A jury may concludethat only one inference is open on its assessment of the evidence or that oneinference carries greater weight than the other, but speculation in aid of adefendant is no more permissible than speculation in aid of the prosecution.[78] The facts from which the Crown may seek to draw inferences neednot be proved beyond reasonable doubt. This Court has discouraged excessivejury directions on the issue of proof by inference from circumstantialevidence. This Court has also ruled that the concerns underlying directionson inferences can be met by a combination of the orthodox direction on25 At [34].circumstantial evidence and firm directions as to the need for proof beyondreasonable doubt. We agree with the Crown that the Judge's directions tothe jury were entirely consistent with these authorities.(Footnotes omitted.)[34] While it may be that the case against Mr Hines was "more" circumstantial thanthe case against his co-defendants, that does not detract from the force of the pointsmade above. The case against Mr Hines may have been circumstantial, but it wasstrong. There is nothing further to be said. The Judge's directions cannot be criticised.Direction against prejudice[35] This appeal ground is intertwined with the more specific ground relating toDSS McNaughton's evidence and so we return to it in that context shortly. For now,however, we merely note that in his summing up Downs J gave a completely orthodoxcaution against prejudice arising from the gang context. He said:As I said at the beginning of the trial, alleged drug offending can give rise tostrong views or feelings. So too gangs and alleged offending by gangs.You must put that type of response entirely to one side. The mere fact thatone or more of the defendants is connected to a gang says nothing about guiltor whether the charges are proved.[36] In response to the contention that something more was required, we can do nobetter than to repeat what this Court said in the earlier judgment:26[88] The Judge properly explained to the jury the limited purpose of theDetective Senior Sergeant's evidence and the need for them to put to one sideany feelings of prejudice they may have because of the evidence that some ofthe defendants were involved with the Head Hunters. In particular, the Judgewarned the jury the evidence about gang involvement could give rise to strongviews or feelings and that the jury needed to put "that type of response entirelyto one side. The mere fact one or more of the defendants is connected to agang says nothing about guilt or whether the charges are proved."[89] That was an entirely appropriate direction in the context of this case.Nothing more was required. We are therefore satisfied there is no merit in thisground, or any of the grounds of Mr Edwardson's appeal. We thereforedismiss his appeals against conviction.26 Edwardson v R, above n 3.Admissibility of DSS McNaughton's evidence[37] Unlike the first two, this ground of appeal has not previously been addressed,or at least not directly so. It is therefore necessary to deal with it in a little more detail.[38] Following a voir dire on the first day of trial, Downs J issued a ruling on theadmissibility of DSS McNaughton's evidence. The Judge began by recording that:[2] Mr Hines does not object to the witness's related expert evidenceabout motorcycle gangs or the Head Hunters gang. Rather, his objection isconfined to the witness's statement of opinion:(a) Mr Hines was at least a co-leader in the relevant period withanother gang member, Wayne Doyle.(b) The East Chapter operated under the auspices of a committeecomprised of Mr Doyle and Mr Hines.[3] Mr Holland accepts DSS McNaughton has the requisite experienceand expertise to give more general evidence about the Head Hunters gang.But he submits the two aspects above lack the requisite evidential foundation,and the prejudicial effect of the evidence outweighs its probative value.[39] The Judge then noted the nature of the Crown case against Mr Hines and thecentrality to it of the proposition that he directed the offending in his capacity as aleader of the East chapter. He therefore accepted the proposed evidence was bothcontextually and directly relevant. He then held that the probative value of theevidence outweighed its prejudicial effect. In that regard, he said: Expert evidence in connection with gangs has the potential to exciteprejudice, as does evidence an individual is the leader of a gang. However,the relevance of the evidence also demonstrates its probative value.Less Delphically, evidence that Mr Hines is the East Chapter's leader bearsdirectly on the contention he directed the offending in question. Or, to borrowthe language of William Young J in Mahomed v R, the prejudicial effect of theevidence is "conterminous with its relevance" and reveals nothing about thedefendant which is not directly germane to the case against him. Judicialdirection will cure any remaining risk.[40] We have already dealt with the discrete issue of prejudice above.[41] In any event, as the Judge noted, the real battleground in relation toDSS McNaughton's evidence was whether it was substantially helpful. On that issue,we set out his reasoning in full:[11] As observed, DSS McNaughton proposes to testify Mr Hines was aleader or co-leader of the East Chapter of the Head Hunters gang between2013 and 2015. The evidence is based in part on the officer's knowledge andexperience of the Head Hunters gang, and this Chapter in particular. In thisperiod, the witness was the Detective Sergeant in charge of a Gang Unit whichtargeted the Head Hunters gang. The officer's earlier roles buttress hisexpertise and this aspect of his testimony, including intelligence roles inconnection with motorcycle gangs and the Head Hunters gang.[12] The proposed evidence is also based on the witness's personalexperience. DSS McNaughton testified he dealt with Mr Hines or Mr Hinesin association with Mr Doyle between five and 10 times as the apparent leaderor leaders of the Chapter. The witness testified gang culture is such thatdiscussion with a Police officer on the part of a gang member is impermissibleunless the member has permission to speak to the Police. So, when an issuearose which required attention on the part of the Police in connection with theEast Chapter, DSS McNaughton would speak to either Mr Hines or Mr Doyleas the apparent leader of the Chapter. The witness said he preferred dealingwith Mr Doyle as he found Mr Doyle to be more accommodating. He said hisdealings with Mr Hines, which commenced in 2013, were noticeably differentfrom those in connection with Mr Doyle.[13] Under cross-examination, DSS McNaughton agreed he made nonotebook entries or other documentation in relation to his meetings with eitherMr Hines or Mr Doyle. The officer said he did not do so because theassociated Police inquiries were unofficial, and if he documented theexchanges, that could preclude further dealings with Mr Hines or Mr Doyle,or the East Chapter more generally. In short, the witness said it was moreimportant to have a line of communication with the Chapter and its leadersthan to document that fact. He was adamant the meetings occurred, and gavean example of one in the wake of a (high-profile) murder of a member of theHead Hunters.[14] Mr Holland submitted the absence of any documentation and limitedrecollection of the witness in relation to any of the meetings deprivedthe officer's evidence of its requisite foundation.[15] I am satisfied there is a sufficient evidential foundation for theofficer's opinion. The officer's explanation for not documenting thesecommunications is one the jury could accept. Whether the jury does so is forit. Moreover, the objection is more a matter of weight rather thanadmissibility. That too is a jury issue. Importantly, the witness's evidenceloses none of its cogency because the witness cannot recall the contents of thespecific discussions with Mr Hines (or Mr Hines and Mr Doyle) beyond thatin connection with the murder of a Head Hunters gang member. The evidenceis not adduced because of what was said. It is adduced because whatever wasdiscussed, Mr Hines was held out — or held himself out — as a leader ofthe Chapter. Nor will cross-examination on the absence of record keepingexpose Mr Hines to the introduction of otherwise prejudicial evidence abouthim.[16] The Crown also seeks to adduce evidence from DSS McNaughton thatmaterial decisions of the East Chapter are made by a committee comprisingMr Doyle and Mr Hines. Under cross-examination, the witness said it was his"impression" the committee was comprised of these two members. I askedthe officer whether his evidence on this topic had anything to support itbeyond a particular event in which Mr Hines and Mr Doyle said the decisionin question (whether Police could speak to members of the gang in connectionwith the homicide inquiry) would be made by "the committee". The officersaid that was the only basis on which he offered that piece of testimony.[17] Mr Northwood responsibly accepted in this context, a witness maynot give evidence of his or her impression. It follows the officer may not offerevidence about the apparent composition of the committee. The officer may,however, refer to the existence of the committee and the particular occasionor occasions on it was referred to by Mr Hines, Mr Doyle, or both.[42] In light of the latter part of this ruling, we can reject without further discussionthe second limb of this ground of appeal. Downs J made it clear that DSS McNaughtonwas not permitted to proffer an opinion that the East chapter operated under theauspices of a "committee" comprised of Mr Doyle and Mr Hines. Rather, he said thathe should limit his evidence to those factual matters which might give rise to such aninference. Based on our own review of the evidence that DSS McNaughtonsubsequently gave, he did not transgress that ruling.[43] As to the first limb — that Downs J should not have permitted DSSMcNaughton to express his opinion that Mr Hines and Mr Doyle were (at least)co-leaders of the East chapter — we agree with the Judge that the real issue was notone of admissibility but one of weight for the jury. Mr Hines' status as gang leaderwas relevant and the officer's evidence about it was principally evidence of fact, notopinion; it dealt with his own interactions with Mr Hines when dealing with the gangand as such was plainly admissible. He was also qualified to offer an opinion, basedon those interactions and his wider knowledge of gangs, that Mr Hines was the leader.The Judge was not wrong to conclude that the opinion was substantially helpful andso admissible; he made it clear that the jury should not defer to that opinion but decidefor themselves. His summing up made it clear that the evidence was disputed. And inany event, we note that the writer of Mr Hines' Provision of Advice to Courts reportrecorded that:He [Mr Hines] acknowledged during the course of the interview that he is the"boss" in reference to his status with the Head Hunters gang but also made itclear that he did not have absolute control over the actions current matters area case in point.(Emphasis added.)[44] Regardless of whether his control was absolute, that acknowledgment servesto confirm our view that there was no error here.Failure to warn[45] In his Bench Note dated 10 February 2017, Downs J recorded that:[2] I again warned the jury against prejudice in relation to gangsimmediately prior to the evidence of Detective Senior Sergeant McNaughton.[46] This aspect of the appeal appears to be based on the fact that a transcript of thewarning given was not available. It was not in the case on appeal. It was not, however,suggested that the warning was not given. And the adequacy more generally of thewarnings about prejudice have been discussed above. There is nothing in this ground.[47] Nor can we accept the related criticism that the Judge was wrong to interrupt(then) counsel for Mr Hines in the course of his opening statement. The relevantexchange was as follows:Holland: You would have heard yesterday the Crown start theircomments by saying this case is not a case about gangs, andyet they then proceeded to mention gangs repeatedly throughthe rest of their very lengthy opening comments. The realityis ladies and gentlemen whatever cautionary commentsthe Crown started with yesterday, they're going to push thisgang narrative as much as they can.The Court: Mr Holland, I have interrupted you once. I have asked you toconfine this to an opening statement of issues. You havehelpfully identified those. I have directed the jury and will doso again in relation to prejudice.[48] Section 107(2) of the Criminal Procedure Act 2011 makes it clear that thepurpose of any (initial) opening statement for the defence is limited, as the Judge said,to the identification of issues. The Judge was right to exercise control over the scopeof Mr Holland's statement.Conclusions (conviction appeal)[49] None of the grounds of appeal against conviction disclose any error on the partof the Judge. The conviction appeal must be dismissed.Sentence appeal[50] As noted at the beginning of this judgment, Mr Hines was sentenced to 18 yearsand six months' imprisonment with an MPI of eight years and four months.That sentence was made up of the following components:27(a) a starting point of 16 years' imprisonment on the lead manufacturingcharge;(b) an uplift of three and a half years for the "storage unit" offending, whichtook into account the methamphetamine found in the van inside theunit;(c) a further uplift of six months for Mr Hines' criminal history;(d) a discount of 18 months for health issues; and(e) an MPI of 55 per cent (ten years28) reduced to 45 per cent (eight yearsand four months) for health issues.[51] The following grounds of appeal were originally advanced against thissentence:(a) The Judge's starting point was too high.(b) The Judge wrongly calculated the amount of methamphetaminemanufactured in April 2015 as one kilogram when there is insufficientevidence to justify such calculation. His starting point based on thatweight is therefore untenable.(c) The Judge gave insufficient consideration to and discount for Mr Hines'medical condition and in particular the degree of extra suffering thatthe condition would result in from a sentence of imprisonment.27 R v Hines, above n 1, at [12], [16]–[18], [22] and [25].28 55 per cent of 18 years and 6 months is ten years and two months but the maximum term of anMPI is ten years pursuant to s 86(4) of the Sentencing Act 2002.(d) The Judge failed to give consideration to s 8 of the New Zealand Billof Rights Act 1990 (NZBORA) which guarantees the right to life.[52] In light of the earlier judgment, Mr Krebs rightly conceded that the first twowere untenable and we do not address them further. The remainder of this judgmenttherefore concerns only with Mr Hines' medical issues and the new ground of appealthat has arisen as a result of the earlier judgment. In light of our conclusions on theformer point we do not consider it necessary to consider s 8 of the NZBORAseparately. The latter point simply concerns achieving parity with the reduction insentence given to Messrs T Maaka and Sadler. We deal with that first.Double counting[53] In the earlier judgment, the Court found that there had been an element ofdouble counting in the uplift imposed for the "storage unit" offending byMessrs T Maaka and Sadler. The Court explained its thinking in the context ofMr Maaka's appeal as follows:29[146] We are of the view that most of the items found in the storage unit,although associated with the manufacture of methamphetamine, were not partand parcel of the manufacture on the evening of 18 April 2015 and or morningof 19 April 2015. However, the Judge clearly held that the 136.5 grams ofmethamphetamine found in the van was the residue of the methamphetaminemanufactured on the earlier dates. Unlike Mr Edwardson, Mr T Maaka wascharged with that manufacturing. Accordingly, to increase his sentence due topossession of that same methamphetamine would amount to double counting.The remaining items, being firearms, equipment, precursor substances andammunition, were separate although related offending. They did add toMr T Maaka's overall culpability.[147] We are of the view that the uplift of three years was too high comparedto the four-year starting point adopted in respect of Mr Edwardson. It isappropriate to compare the two in order to avoid disparity in sentencesbetween co-offenders. We accept Mr T Maaka's culpability for the storageunit offending was higher than that of Mr Edwardson given Mr T Maaka wasmore senior in the Head Hunters. However, in relation to Mr T Maaka,the Judge should not have included the possession of methamphetamine in theuplift. Further, a reduction for totality is needed to reflect the relationshipbetween the storage unit charges and the earlier manufacture offending, inparticular the charges for possession of materials in connection with themanufacture of methamphetamine. Methamphetamine manufacture almostalways includes significant commerciality and, accordingly, precursormaterials and equipment. To some extent this is inherent in the penalty for29 Edwardson v R, above n 3.manufacture. The important question is the extent to which the items foundin the storage unit, excluding the methamphetamine, added to Mr T Maaka'soverall culpability. We consider an uplift of 18 months adequately reflects hisadditional culpability.[54] For the same reasons, the Court also gave Mr Sadler an 18-month reduction inhis sentence.30[55] Mr Hines received an uplift of three and a half years for the storage unitoffending. The extra six months reflected the Judge's view of his higher culpabilityoverall. But in our view, parity with Messrs T Maaka and Sadler requires that part ofhis sentence similarly be reduced by 18-months. Such a reduction still reflectsthe Judge's view of Mr Hines' culpability. It would result in an end sentence of17 years' imprisonment. Absent an MPI, that would mean that he would be eligiblefor parole after serving five years and eight months' imprisonment.Medical matters[56] There has never been any dispute that Mr Hines is in poor health. Nor canthere be any dispute that it was taken into account by Downs J in sentencing.The Judge relevantly said:31[19] You are unwell. You have type two diabetes and end stage renalfailure. You also suffer heart disease. You require regular dialysis. Thatmeant we did not sit every second afternoon during the trial.[20] Ill-health can operate to mitigate a sentence, particularly when thedefendant would suffer more in prison because of their condition. You arebest treated with dialysis every second day. But at the moment that regime islimited to Mondays, Wednesdays and Fridays, and is not available on theweekends. It may be some weeks, perhaps even months, before a second dayregime can be accommodated within prison. In any event, you find travellingthe short distance between the prison and hospital tiring. That is unsurprising.I am informed that your incarceration means it is unlikely you will be eligibleto receive a kidney transplant. That is likely to affect your lifespan.[21] Mr Holland seeks a significant deduction having regard to thesecircumstances. He invites my attention to a period of at least two years.Mr Northwood accepts that you should be afforded some "latitude", "but notvery much".30 At [162]. Mr Edwardson did not get a reduction because he was not involved in the manufacturing.Rather, the index charges related to the storage unit offending.31 R v Hines, above n 1.[22] The law in this area suggests my discretion is reasonably broad.There are competing objectives. On the one hand, compassion suggests a needfor a significant adjustment. On the other, deterrence, denunciation andcommunity protection also remain relevant. You sat atop an organisationwhich made a very large amount of methamphetamine, and which intended tomake more. You also possessed a cache of firearms and ammunition. In thesecircumstances I settle upon a discount of 18 months' imprisonment.[23] There are no other mitigating features.[24] The Crown seeks a minimum period of imprisonment of at least 50 percent of your finite term. Minimum periods are common in the context ofserious drug offending, but that is not decisive. The test is whether paroleeligibility after one-third of your sentence would be insufficient for thepurposes of accountability, denunciation, deterrence and communityprotection.[25] I am satisfied a minimum period of imprisonment is necessary havingregard to the nature and seriousness of your offending, your apex role in anorganised criminal enterprise, your criminal history and risk of harm to thecommunity. However, your ill-health requires some downward adjustment ofthe otherwise applicable period. I settle upon 45 percent. But for yourill-health, I would have imposed a minimum period of 55 percent.[57] In advance of the hearing of Mr Hines' appeal, affidavits relating to Mr Hines'health issues and their management in prison were sworn by Ms Shelley Scott, who isa registered nurse and the Health Care Manager at Auckland Prison, and Mr Hineshimself. Both witnesses were cross-examined at the hearing.[58] Much of the content of Mr Hines' evidence simply confirmed the informationthat had been before Downs J at the time of sentencing. In his first affidavit (sworn inAugust 2017) he said:(a) Prior to his imprisonment, he had been on dialysis four times a week,five hours a day since 2012.(b) Since his incarceration he gets one day less dialysis every fortnight andeach session lasts only four to four and a half hours, rather than theoptimum five.(c) Use of the dialysis machine is complicated and while at home he neededhis son's help to use it.(d) While using the machine, he often gets dizzy and nauseous and has, onoccasion, had seizures and black outs. When that had occurred at home,his son would then take him to the nearby hospital.(e) In prison, he has to set up the dialysis machine himself which he findsvery stressful. It is also made more difficult by the fact that he is blindin one eye and has limited sight in the other. Staff are not trained in theoperation of the machine sufficiently to be of much assistance.(f) He has to place the dialysis needle in his own arm which can bedifficult. His son used to do this for him.(g) He is concerned about hygiene because the bins containing the usedtubes and hoses are often not emptied for three weeks. The bins smell.An infection could be fatal.(h) On one occasion in prison his arm would not stop bleeding when hecame off the machine because he was given the wrong dosage of hisblood thinning medication. The prison nurses did not know what to doand it was four and a half hours before he was taken to hospital.(i) He is on 22-hour lockdown which makes it impossible to maintain hisexercise regimen.[59] In his second affidavit (sworn in April 2018) he reiterated his earlier concernsand said further:(a) He remains on 22-hour lockdown in a maximum-security unit which isold and in poor condition, despite having being assessed as being alow/medium security risk. This is because the dialysis machine is inthe maximum-security unit.(b) The prison food is too salty which is bad for his kidney problems anddiabetes.(c) There are people who have offered to donate a kidney to him but hisimprisonment means he is not eligible to be on the transplant list.[60] In relation to the last point Mr Hines clarified orally that while he had familymembers who were willing to donate a kidney to him, none had yet been tested for amatch.[61] Mr Hines' son also swore an affidavit in which he confirmed what his fathersays about the complexity of operating the dialysis machine.[62] Ms Scott said that, in general terms:(a) Corrections are funded to provide primary health care to prisoners.Every prison has a Health Centre. Provision of primary health care isprovided either in the Health Centre or within the prison.(b) Section 75 of the Corrections Act 2004 requires Corrections to providea level of medical treatment that is reasonably necessary, andreasonably equivalent to the standard of care available to the public.The requirement to facilitate hospitalisations and day procedures atspecialised medical facilities is entirely routine.(c) For treatment purposes, a prisoner is permitted to leave prison, andalways with a prison escort. Prisoners attend hospitals, outpatientclinics and specialists in this way. Such releases are regulated by reg 77of the Corrections Regulations 2005.(d) Provision of secondary and tertiary health care services is theresponsibility of the local District Health Board. The Prison HealthService refers prisoners requiring specialist care and treatment to theseservices under the same eligibility criteria as any other member of thepublic. Corrections work closely with and are guided by secondary andtertiary specialist health services advice in the management andtreatment of all prisoners who have complex needs.(e) There is no blanket ban on transplants for prisoners.[63] More specifically, as far as Mr Hines is concerned, Ms Scott deposed:(a) On his arrival at prison Mr Hines was noted as having the followingmedical conditions: "end stage renal failure, fluid overload, cholestatichepatitis, gout, Type 2 diabetes mellitus, ischaemic cardiomyopathy,atrial fibrillation".(b) A comprehensive care plan was formulated around his health needs.Nurses order his dialysis supplies each month.(c) Health staff received advice about Mr Hines' diet from a dietician at theWaitemata District Health Board (WDHB) on his admission to prison.That information was relayed to the prison kitchen.(d) Prior to his arrival there were no dialysis machines at Auckland Prisonso one was installed by the WDHB for Mr Hines' use. Mr Hines isresponsible for maintaining the dialysis machine, as he was at home.(e) WDHB provided a haemodialysis technician to be on site during thefirst few weeks of Mr Hines' arrival at Auckland Prison.(f) Mr Hines was advised by the haemodialysis technician to clean thedialyzer monthly, by changing the filters and also changing a particularfilter every three months. Mr Hines confirmed he could do it and thathe had been doing it for the past couple of years at home.(g) The haemodialysis technician trained the Nurse Team Leader so thatshe could train the nurses. The nurses were taught how to switch thedialyzer on, and off, in an emergency. They were taught how to run thedisinfection cycle to facilitate treatment on Mondays after the weekend.(h) The level of training given was aimed at ensuring that the nurses couldsupport Mr Hines to continue to "self-care" and perform his owndialysis. This included how to clamp Mr Hines' intrafistular system inthe event of an emergency and to follow routine emergency procedures.(i) Nurses check on Mr Hines hourly during his dialysis and ensure he iskeeping the required notes. Mr Hines has a call bell which ringsthrough to a pager held by a nurse throughout the dialysis process.(j) A medical waste bin is used for disposing of all dialysis waste. It hasa plastic liner and is collected every three weeks by the medical wastecompany contracted to the prison. This can be made more frequent ifnecessary. The dialysis room is cleaned two to three times a week bythe health unit cleaner. The chair linen is washed weekly.(k) Mr Hines can complete a health request form if he has concerns abouthis exercise levels.(l) Although dialysis presently takes place in the East Wing at AucklandPrison this does not mean that dialysis patients are required to live inthat wing. There is no health reason requiring Mr Hines to be housedthere.(m) In any event, East Wing will be closing when the new prison opens inthe next few months.(n) Mr Hines is under the care of a number of specialists for his chronichealth conditions. Specialist appointments are made for him asrequired. On occasion, he has declined to attend external appointmentswith his specialist team.[64] As well as the evidence of Mr Hines and Ms Scott, we had before us a copy ofinformation provided to his lawyer, Mr Holland, from a nephrologist,Dr Michael Collins, prior to sentencing. Relevantly he stated:At the present time, Mr Hines has been suspended from the transplant list duein part to his detention. There had also been concerns about his fitness froma medical perspective (cardiac issues) but recently he has been stable fromthat perspective so I suspect if we were to reconsidered for being re-activated[sic] that would not be a barrier.Our usual process is that patients who are sentenced will have their casediscussed at a regular transplant committee meeting and a decision made tode-list them. If in future the patient is released he can be reconsidered fortransplant listing, and his waiting time (a component of how kidneys areallocated) will be back dated to his original listing date.From the medical perspective, it is well documented that transplant has asignificant positive effect on survival over dialysis. In general terms, the rateof patient survival after 5 years on dialysis equates to around 50%, comparedwith over 90% for patients who get a transplant. This is without commentingspecifically on Mr Hines' situation, but I can say pretty categorically thatdelaying a transplant increases the risk of dying for most patients on dialysis.I can send you links to further information on this if you would find it useful.Discussion[65] It is important to record at the outset that we are concerned here with an appealagainst sentence, not an application for judicial review of the quality of health careprovided to prisoners such as Mr Hines. Nor are we in a position to second guesseither operational or clinical matters.[66] But there remains s 8(h) of the Sentencing Act 2002. Its potential operation incases such as this was discussed by this Court in R v Luce.32 In that case, as here,the appellant had kidney failure requiring dialysis. The Court said:[22] Section 8(h) preserves the principle of mercy on sentence; a principleof long standing: R v Wihapi [1976] 1 NZLR 423, 424, CA. Nevertheless, itis a principle to be given effect in such cases as these with some caution.The fear has always been that ill health could become a licence to offend andavoid accountability: R v Verschaffelt [2002] 19 CRNZ 638; R v Pomana[2007] NZCA 138; R v KGB [2007] NZCA 292; R v Bernard [1997] 1 Cr AppR(s).[23] One consideration has always been whether ill health is able to bemanaged sufficiently within the prison, to ensure that the sentence imposed isnot disproportionately severe. There are also remedies given by statute.The Chief Executive may release a prisoner 'for compassionate or humanetreatment': s 66(2)(a)(ii), Corrections Act 2004. Ultimately, the Parole Boardis able to release a prisoner early if he or she is 'seriously ill and unlikely torecover': s 41, Parole Act 2002.[24] That said, the prerogative of mercy, now expressed in s 8(h), remains.In Verschaffelt, for instance, this Court increased a discount from a propersentence from one-third to one half, in the main to take account of the32 R v Luce [2007] NZCA 476.disproportionate severity of that sentence, given the appellant's age and stateof health. Another such instance is R v Gallagher (1994) 9 CRNZ 421.[25] Where extreme ill health is coupled with a very low life expectancy,as is the case here, a more than usual discount can be justified. As Lamer CJsaid in R v M (CA) (1996) 1 SCR 500, at [74]: the sentencing judge should be mindful of the age of the offenderin applying the relevant principles of sentencing. After a certain point,the utilitarian and normative goals of sentencing will eventually beginto exhaust themselves once a contemplated sentence starts to surpassany reasonable estimation of the offender's remaining natural lifespan.[67] The Court allowed Mr Luce's sentence appeal, reduced his sentence anddeclined to reimpose an MPI, saying:[26] That is our own conclusion in this case. Mr Luce is in such ill healthand his life expectancy is now so palpably short that the usual purposes andprinciples of sentence have become increasingly notional, and the difficultiesinherent in a sentence of imprisonment so palpable that, despite the statutoryremedies, that should be recognised in the ultimate sentence. It should bereduced by two years.[68] And so we turn to the present case. Mr Hines is now 65 years old. If, for thereasons already given, his end sentence is reduced to 17 years' imprisonment, then anMPI of 45 per cent would equate to a little over seven and a half years. He wouldtherefore be in his early seventies before he was eligible to be released. He has alreadybeen on dialysis for six years and we note what Dr Collins said about survival ratesafter five. Relatedly, we also accept that the possibility of a transplant (were a kidneyto become available) while he remains in prison is remote. The imposition of an MPItherefore has a potentially direct effect on Mr Hines' life expectancy. On the basis ofthe (somewhat limited) medical information before us it seems that the chances of himcompleting the minimum period seem far from good.[69] And while, on the evidence, it seems Mr Hines' medical conditions aremanaged adequately in prison, it cannot be said that the care he receives is equivalentto that which he received in the community; the reduced frequency and duration of hisdialysis treatment speaks for itself. So do the (at best) very limited transplantopportunities.[70] So while Downs J recognised Mr Hines' health issues in the sentencingdiscounts he gave, we are of the view that the appropriateness of an MPI requiresrevisiting on appeal. For the reasons just given, we consider that Mr Hines' medicalcircumstances are such that the need for specific deterrence is reduced and, in light ofs 8(h) of the Sentencing Act, an MPI is not warranted.[71] As noted earlier, we do not consider it necessary to consider any issue abouts 8 of the NZBORA separately.Result[72] The appeal against conviction is dismissed.[73] The appeal against sentence is allowed:(a) the sentence of 18 years and six months' imprisonment is quashed anda sentence of 17 years' imprisonment is substituted; and(b) the minimum period of imprisonment of eight years and four months'is quashed.Solicitors:Gifford Devine, Hastings for AppellantCrown Solicitor, Auckland for Respondent