THE QUEEN v ABIODUN JAMIU SHOBAYO [2003] NZCA 53 (19 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA172/02

THE QUEEN

v

ABIODUN JAMIU SHOBAYO

Hearing: 17 March 2003

Coram: Blanchard J

RobertsonJ

William Young J

Appearances: R A Harrison for Appellant

J C Pike for Crown

Judgment: 19 March 2003

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1]	Mr Shobayo appeals against his conviction in the High Court at Wellington on charges of importing, supplying and having possession for supply of the class A controlled drug heroin.He also appeals against the effective sentence of 10 years imprisonment.
[2]	The charges of importing and supplying related to events in Auckland.The supply involved only a very small amount of the drug.The amount involved in the importation is not known.The basis for those convictions was the evidence of a Ms Waitoa, which obviously the jury accepted, that the appellant had discussed with her acting as a courier for an importation of heroin but some three weeks later had told her that he had managed to find someone else who had brought the heroin into New Zealand for him.He said he still needed to get rid of some of that heroin and that he had a sample for her to “give to someone to try”.Her evidence was that the appellant then pulled a packet out of his jacket and sprinkled some in a cigarette packet.She described what she saw as “like yellow kinda of [sic] lumpy powder”.The appellant had put some in a piece of foil and given it to her.She understood she was to give it to someone who used heroin as a sample.If they wanted to buy she was to telephone the appellant.Her evidence was quite definite that the appellant told her the substance he had given her was heroin.She said she later flushed it down the toilet.She was a drug user but had no experience of heroin.
[3]	The appellant challenged Ms Waitoa’s evidence by means of his trial counsel’s cross-examination but did not give evidence himself denying her account.It was obviously open to the jury to accept Ms Waitoa’s story, particularly in light of the matter giving rise to the third and more serious charge about to be mentioned.The case is clearly distinguishable from R v MacDonald, CA55/95, 6 July 1995 where the issue on a pre-trial appeal was as to the admissibility of visual identification of cannabis.Here Ms Waitoa was not purporting to say that the drug could be identified by her as heroin.Instead, she said that she had been told by the appellant that the substance was heroin.It was suggested that the colour of the drug as described was not consistent with heroin, or at least with the appearance of the heroin later found in the appellant’s possession, but no evidence in support of that assertion was placed before the Court.
[4]	Some weeks after the events already described the appellant was in Wellington and was found by police with 191 grams of heroin in a motor vehicle.The only issue on appeal relating to that occurrence is whether the evidence of that discovery should have been admitted at trial.It is submitted that it was found only as a result of an unlawful search which was unreasonable in terms of s21 of the New Zealand Bill of Rights Act 1990.
[5]	At about 5am on 15 April 2001 a police car was sent to deal with a fracas in Kilbirnie outside Rongotai College. The message from the police dispatcher told the two officers in the car that there had been an attempt by gang members to beat a man.There were weapons (“long sticks”) said to be involved.“Apparently these gang members are in a black vehicle”.When the police car arrived at the scene a silver car was present with its door partly open.The door was closed, seemingly after someone got in, and the vehicle drove off at high speed with tyres screeching.People on the street were pointing at it and yelling abuse.
[6]	The police car gave chase and by use of flashing lights the police officers were shortly able to stop it in Coutts Street.It became evident to the constables that the car was full of people.The female driver, a Maori, got out and approached the police car.She was in an agitated state.She asked “did you get them?”, pointing back down the road.One of the police officers told her to return to her vehicle and he “would be along shortly to speak with her”.
[7]	The police did not approach the silver car at that time because they believed it contained gang members with weapons and they did not feel it was safe to do so.They were awaiting the arrival of a police backup understood to be on the way.In fact that police car was diverted and did not arrive.
[8]	Some 23 minutes elapsed.By this time the police officers had received information that a person had been stabbed in the incident outside Rongotai College and that an ambulance had been called.The occupants of the silver car got out of their vehicle and the police officers decided to approach them.There were three males, two of whom appeared to be of African origin and one whom claimed to be an English visitor to New Zealand, as well as two Maori women.They were saying they had been attacked.Constable Brown identified himself and informed the driver that he proposed to search them and to search the vehicle for weapons under s202B of the Crimes Act 1961:

202BPowers in respect of crime against section 202A

(1) Where any constable has reasonable grounds for believing that any person is committing an offence against section 202A(4)(a) of this Act he may—

(a) Stop and search that person and any package or receptacle he has with him that the constable has reasonable grounds for believing contains any knife, offensive weapon, or disabling substance, and may detain that person for as long as is reasonably necessary to conduct that search:

(b) Stop and search any vehicle in which that person is travelling or from which he has alighted if the constable has reasonable grounds for believing that the vehicle contains any knife, offensive weapon, or disabling substance, and may detain that vehicle for as long as is reasonably necessary to conduct that search;—

and in any such case the constable may take possession of any knife, offensive weapon, or disabling substance found.

(2) Every constable exercising the powers conferred by subsection (1) of this section shall identify himself to every person searched, tell him that the search is being made under this section, and, if not in uniform and if so required, produce evidence that he is a member of the Police.

(2A)If it is necessary for any constable to stop a vehicle for the purpose of exercising the power conferred by subsection (1)(a) to search a person who is in the vehicle, sections 314B to 314D apply with any necessary modifications as if references in those sections to a statutory search power are references to subsection (1)(a).

(2B) Despite section 314A, sections 314B to 314D apply to the exercise of the power to stop a vehicle conferred by subsection (1)(b).

(3) Where any person is convicted of a crime against section 202A of this Act, the Court may make an order for the forfeiture or disposal of any knife, offensive weapon, or substance in respect of which the crime was committed.

[9]	In the front passenger seat footwell the police found a screwdriver with what appeared to be blood on its blade.In response to an inquiry, the driver gave a most unlikely explanation, namely that the blood had come from the other woman, who was having her period.The police then decided that they should search the boot of the car for weapons and in doing so found the heroin.It is not challenged on this appeal that it was in the possession of the appellant.
[10]	It is accepted that once the screwdriver was found there was ample reason to support the search of the boot.The challenge, first, is to an alleged failure to comply with s314B(4) of the Crimes Act immediately after the stopping of the car when the driver approached the police vehicle.Secondly, it is said that when the police began to search the car, leading to the finding of the screwdriver, they did not have good reason to believe that the vehicle contained an offensive weapon.
[11]	Section 314B provides:

314BGeneral power to stop vehicles

(1) Any member of the Police may stop a vehicle for the purpose of conducting a search under a statutory search power if the member of the Police is satisfied that,—

(a) In respect of a statutory search power to search without a warrant, the ground or grounds, as the case may be, for exercising that statutory search power, as set out in the applicable statute, exist; or

(b) In respect of a statutory search power to search with a warrant, the warrant has been issued and is in force.

(2) Any member of the Police who stops a vehicle under subsection (1) must—

(a) Be wearing a uniform or distinctive cap, hat, or helmet with a badge of authority affixed to that cap, hat, or helmet; or

(b) Be following immediately behind the vehicle in a motor vehicle displaying flashing blue lights, or flashing blue and red lights, and sounding a siren.

(3) A person driving a vehicle must stop the vehicle as soon as is practicable on being required to do so by a member of the Police exercising the stopping power conferred by subsection (1).

(4) Every member of the Police exercising the stopping power conferred by subsection (1) must, immediately after the vehicle has stopped,—

(a) Identify himself or herself to the driver of the vehicle; and

(b) Tell the driver that the stopping power is being exercised under this section for the purpose of exercising a statutory search power; and

(c) Tell the driver the statutory search power in respect of which the stopping power is being exercised; and

(d) If not in uniform and if so required, produce evidence that he or she is a member of the Police.

(5) Subsection (4) does not limit any other duties that a member of the Police must carry out when exercising the applicable statutory search power.

(6) Despite subsection (5), a member of the Police need not carry out any duty that is contained in the applicable statutory search power if that duty is exactly the same as a duty contained in subsection (4).

(7)	This section does not limit or affect the powers of any person other than a member of the Police under any power of search conferred by statute.
[12]	We have no doubt that the stopping was lawful in terms of s314B(1) and (2).The car had sped away from the scene of an incident which the police officers had been told involved the use of weapons by gang members.There may technically have been a breach of sub(4) in that, when approached by the female driver, Constable Brown did not identify himself and invoke ss314B and 202B.But it cannot, in our view, follow that the original stopping was thereby invalidated.And in circumstances where the police had observed that the car suspected of containing weapons was full of people, it was not at all unreasonable to require it to remain but not to approach it until further police officers could arrive, so that the two officers could avoid being outnumbered and possibly confronted by armed gang members.In our view, the continuation of the stopping was in these circumstances entirely reasonable despite any failure to comply with s314B(4).
[13]	By the time the police went further the stalemate had been broken by the five occupants getting out of the car.At that time, when they could be more easily seen, the police must have developed doubts about whether they were in fact gang members.But there remained good reason to believe that they had been involved in the fracas and it had emerged that there had been a stabbing, evidently by someone who, like these persons, had left the scene.That could well have been the reason why the silver vehicle left so suddenly when the police car arrived.The discrepancy in the colour of the vehicle was a factor to be considered but in our view it did not necessarily indicate that these were not people who had been involved in the incident or that they were unlikely to have weapons with them in the car.We agree with the Judge’s assessment, in ruling the evidence admissible, that Constable Brown could in these circumstances reasonably believe that the vehicle contained offensive weapons.It was not suggested that the constable did not in fact hold that belief when he announced the decision to search and invoked s202B.
[14]	The evidence was therefore properly admitted.
[15]	The appeal against the convictions therefore fails.
[16]	In sentencing the appellant the Judge said that the most serious charge in terms of the quantity of drug was the possession for supply.The analysis had revealed that the heroin found in the car was 68-68% pure and that therefore the mixture contained 131 grams of heroin.The inference from the fact that it was relatively uncut was that the appellant’s possession of it was “close to the stage when it was imported”.The evidence was that sold on the street in that state it would be worth between $133,000 and $190,000.When cut down it could return to sellers down the chain a total of about $460,000 depending on the degree of cut it had undergone before it was sold.For present purposes the Judge took the smaller figure representing the value of the drug at the time it was seized.What was clear to him was that the appellant had a very significant amount of high strength heroin mixture.After referring to the evidence relating to the charges of importing and supplying, the Judge said that it was clear to him that the appellant had a source of supply, probably overseas, and that he had no doubt that sooner or later the appellant would have found a way of moving the drug on.“I believe it is quite likely you saw a profitable future for yourself in the drug supply industry in this country”.
[17]	The Judge recorded that counsel then appearing for the appellant had accepted that the sentence would be somewhere between 10 and 15 years.The Judge said that if he had been satisfied that the appellant had been dealing at a wholesale level with an established ring of distributors a sentence of twelve years could be justified.But he had considerable reservations about whether the offending was of that character.“My view is that you are a man with supplies looking for a market.A severe sentence is required because of the amount and the kind of drug and to try to stop other people doing this sort of thing with this drug but not I think at the top level”.He sentenced the appellant to 10 years imprisonment on the charge of possession for supply and imposed concurrent three year sentences in respect of the other charges.
[18]	We have not been persuaded, despite the submissions advanced by Mr Harrison, for the appellant, that the sentence was beyond the range open to the Judge for offending of this nature.A large amount of heroin of substantial value was involved.It seems to us that the Judge was right to take the view that the appellant was involved in a course of conduct involving importation and supply for an intended significant commercial profit, albeit that his activities were in some respects conducted in a rather amateurish way, which led to his downfall.The sentence was consistent, in our view, with the leading case of R v Stanaway [1997] 3 NZLR 129 where a 10 year sentence for possession for supply was upheld as being not outside the range available to the sentencing Judge.In this case the amount of heroin was substantially more than that found in the possession of Mr Stanaway and the present appellant has also been convicted of importation, although of an unknown quantity of the drug.
[19]	The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington