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PUE v R [2005] NZCA 107 (19 May 2005)

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PUE v R [2005] NZCA 107 (19 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA78/04
CA118/04
CA119/04
CA137/04
CA186/04

THE QUEEN

v

ADA SHARON PUE
KERRY JOHN WILLIAMS
GEOFFREY MILTON ALLAN
LEANNE ROSEMARY MACDONELL
DION JAMES HUNT

Hearing: 28 September 2004

Court: Anderson P, McGrath and William Young JJ

Counsel: M A Kennedy for Appellant Pue
R Wade for Appellant Williams
R A A Weir for Appellants Allan and MacDonell
M A Edgar for Appellant Hunt
B M Stanaway for Crown

Judgment: 19 May 2005

JUDGMENT OF THE COURT

A. The appeal by Mr Williams against conviction and sentence and the appeals by Ms Pue, Mr Hunt and Ms MacDonell against sentence are dismissed.
B. The appeal by Mr Allan against sentence is allowed to the extent that the minimum term of imprisonment of two years nine months is quashed.

REASONS

(Given by McGrath J)

Introduction

[1] The five appellants, Ms Pue, Mr Williams, Mr Hunt, Mr Allan and Ms MacDonell, each had linked roles in an operation for the manufacture and distribution of methamphetamine. The manufacture of the drug took place separately in Taranaki and in two locations at Auckland. The centre of distribution was also in Auckland. The appellants were charged with manufacture and supply of methamphetamine, conspiracy to manufacture and supply the drug, and with the supply of precursors.
[2] There were two trials in the High Court at Auckland. The first started on 9 February 2004 and was aborted on 13 February. The second trial commenced on 16 February 2004. Each appellant other than Mr Williams pleaded guilty to the charges he or she faced before or during one or other of the trials. Mr Williams maintained his plea of not guilty throughout, but he was convicted by the jury at the second trial.

Background

[3] The appellants were each sentenced by the trial Judge, Harrison J, to terms of imprisonment. Ms Pue, who had been involved in manufacture of methamphetamine at Waitara, and in its distribution at Auckland, was sentenced to six and a half years imprisonment with a minimum period of three years. Mr Hunt, who had been her partner, and who was involved with her in that offending received a sentence of seven years imprisonment with a minimum parole period of three and a half years.
[4] The operation of Ms Pue and Mr Hunt was more profitable than those of other appellants. The Judge thought that was largely because Ms Pue and Mr Hunt were not addicted to their product. After they had manufactured a batch of methamphetamine their practice was to fly to Auckland where they would check into a leading city hotel and there meet Ms MacDonell. She would pay them in cash, by providing them with boxes of precursor products, or by both means. The journey from Taranaki to Auckland was made by Ms Pue and Mr Hunt eight times between 24 May 2002 and 17 December 2002.
[5] Mr Allan, together with associates, manufactured methamphetamine in rented industrial premises. The premises had surveillance equipment and security devices and the Judge described them as sophisticated. The police arrived at their door on 17 December 2002 when Mr Allan was arrested. Intercepted telephone conversations showed that Mr Allan and a co-offender had manufactured methamphetamine frequently, and profitably, often using precursors supplied by Ms MacDonell. Mr Allan was sentenced to two concurrent terms of five and a half years imprisonment with a minimum period of imprisonment of two years and nine months.
[6] Ms MacDonell distributed what each of the three manufacturing operations produced as well as supplying them with precursors. She dealt directly with the other appellants involved, was very active and had her own distribution network of buyers and middlemen. Buyers paid her either by cash or by themselves supplying Ms MacDonell with precursors. She was sentenced to six years imprisonment with a minimum term of three years.
[7] The Crown case against Mr Williams at the trial was that he had conducted his operation from a rented property in Titirangi, manufacturing methamphetamine, frequently in substantial quantities. He had been observed in the course of the police surveillance doing so frequently producing substantial quantities. Mr Williams regularly relied on Ms MacDonell as a source for precursors. On his arrest Mr Williams told police that, prior to a previous conviction for dealing in methamphetamine, he had been able to earn $300,000 a year from that activity.
[8] Following his conviction by the jury on charges of conspiracy to supply, supply and manufacture of methamphetamine he was sentenced to eight and a half years imprisonment with a minimum period of imprisonment of four and a half years.

Appeal against conviction – Mr Williams

[9] Mr Williams was convicted by a jury in the High Court on 25 February 2004, following a trial which had commenced on 9 February, on one charge of conspiracy to supply methamphetamine, one charge of supply and one charge of manufacture of methamphetamine as a class B controlled drug. He appealed against both convictions and his sentence.
[10] On Friday 20 February 2004, towards the end of the second trial, by which time Mr Williams was the only remaining defendant, Mr Williams’ trial counsel advised the Judge, in the presence of Mr Williams, that he had written instructions to enter a plea of guilty to the charge of conspiring to manufacture methamphetamine. Mr Williams had thereby implicitly admitted participating in communications that had been intercepted by the police and relied on by the Crown at the trial. At that point in the trial the principal issue in the Crown’s case against Mr Williams was whether the recorded voice of one of the participants had been correctly identified by police officers in their evidence as that of Mr Williams.
[11] On Monday 23 February 2004 defence counsel advised the trial Judge that it was now Mr Williams’ intention to give evidence in his defence in which he would maintain his earlier denial that it was his voice on the tapes of intercepted calls, that the police had identified. Counsel then sought and was granted leave to withdraw from continuing to act for Mr Williams for the rest of the trial. The Judge told Mr Williams that his trial would continue and that he was not prepared to allow an adjournment for the purpose of his engaging fresh counsel. Mr Williams replied that he could not continue to defend the charges without counsel, and that he did not want to be present at the trial if that was to be his situation. After conferring informally with his former counsel Mr Williams indicated that he would remain while the trial continued but he would not give evidence or otherwise participate.
[12] The jury then returned to the courtroom and Harrison J informed them that, his counsel having withdrawn, Mr Williams would have to make decisions about the future conduct of the trial himself. The Judge explained that he had allowed an adjournment until 2.15pm in order for Mr Williams to consult over how to run that defence. The Judge told Mr Williams that he would have no further time. Thereafter Mr Williams took no active part in his trial. As indicated he was convicted on the three charges he faced.
[13] In his submissions to us on behalf of Mr Williams, in support of the appeal against conviction, Mr Wade said that it was his client’s trial counsel who had taken the initiative in withdrawing, albeit because of the dramatic change of instructions from his client. Mr Wade argued that there was a real possibility that the consequent lack of representation of Mr Williams during the remainder of the trial had resulted in a miscarriage of justice.
[14] In support of this proposition Mr Wade relied on dicta of Lord Slynn of Hadley, in delivering the judgment of the Privy Council in John Mitchell v The Queen [1999] 1 WLR 1679, which suggested that where counsel had become professionally embarrassed during the course of a criminal trial, there should have been an adjournment in order to see whether other counsel were able and willing to take over representation of the appellant, or at least to give advice as to the courses that were open. Mr Wade also referred us to R v Ru (2001) 19 CRNZ 447.
[15] Mr Stanaway for the Crown argued that Mr Williams was not entitled to an adjournment and submitted that there was no substantial possibility of a miscarriage of justice having occurred as a result of the way the Judge dealt with the situation when counsel withdrew.
[16] The Crown’s case against all appellants had been based on tapes of numerous conversations involving those charged. A listening device, located in the apartment of Ms MacDonell in Auckland, had captured some of the conversations. Other messages were recorded during telephone intercepts. There was also evidence of captured telephone text messages. There was no dispute at trial that the content of the conversations and messages concerned the manufacture and supply of methamphetamine. Cross-examination of Crown witnesses by counsel for Mr Williams at the second trial, Mr Speed, rather concentrated on whether Mr Williams was a participant.
[17] Mr Speed, cross-examined Detective Sergeant Davey, who was in charge of analysing and transcribing all intercepted audio and telephone conversations. He had prepared transcripts, identifying the voices he was listening to either through the persons concerned identifying themselves or from his own recognition of their voices. He was assisted by video tapes showing persons going into and out of the address at which Ms MacDonell lived which he could match with audio conversations inside recorded at the time. Detective Sergeant Davy’s evidence was that he had listened to the tapes for a total of over 600 hours and had become very familiar with the voices he had heard. When cross-examined by Mr Williams’ counsel he said he was 100% certain that he had attributed correct names to callers in all cases where he had done so.
[18] The tapes themselves were played to the jury. Neither counsel sought to challenge the transcript record of what was being said or the interpretations that were being given to the conversations. Mr Speed’s questioning was rather concerned with the attribution to Mr Williams of what had been said. For example, in relation to a taped telephone conversation:

It’s the case here isn’t it that Mr Williams is in fact the cook isn’t it, that’s what the Police are saying, that he is the manufacturer?..... Yes.
You are saying that he is being supplied with the manufactured product?..... That’s correct.
And I suggest to you that that voice sounds quite different from the voice that we heard before, what do you say to that, on the previous tape?..... I recognise it as being the same person.
I am suggesting to you it sounds quite different?.. I retain my same answer.

and later:

Would you agree that the voice quality of this tape recording is in the – is quite different from the earlier one you played, the one prior to this, where you say it’s Mr Williams?..... I can recognise the voice on both, um, yes, that was a conversation here where he’s directly talking into a cellphone, and the other one is where he’s in the background, so yes.
Could you be wrong again?..... No I am not wrong.

THE COURT: Just saying, to be fair, when you say "Could you be wrong again" I do not understand this witness to have admitted that he had been previously wrong. Perhaps it would be appropriate to rephrase that question.

Well I am putting it to you that you are in fact wrong about your identification of the voice which you say is Mr Williams?..... No I’m not. There’s also a number of matters that corroborate my voice identification. I recognise that voice throughout all of the conversations. In some conversations the person is referred to as Kerry. There’s also other evidence such as the surveillance camera that goes on Ms MacDonell’s apartment and-

THE COURT: In your case Mr Davey could you just confine yourself to facts which are within your knowledge when you answer the question.

?..... Well I am aware that on the audio conversations he is present in Ms MacDonell’s apartment when they are recorded and I can recognise the voice from those conversations and these conversations –
is there a – there’s no camera involved in this particular conversation is there?..... No, but I can recognise the voice on the audio and the voice on the phone as being the same person.

[19] After further questioning along the same lines, with similar responses the Judge told counsel he did not have to maintain the same challenge at every interview in which Mr Davey had identified a voice as that of Mr Williams. The Court recorded that the defence challenge applied to every such identification and the Judge instructed the jury accordingly.
[20] The Crown was also able to rely on evidence of extraneous matters to support the officer’s opinion evidence. The person said to be Mr Williams referred in one conversation to having an appointment at a particular place. The police were able to ascertain and show that Mr Williams had an appointment at the time and place concerned. Likewise, the video surveillance camera had provided images of Mr Williams visiting the apartment of Ms MacDonell, at a time when a conversation was recorded between her and the person who Mr Davey said was Mr Williams in which manufacture of methamphetamine was discussed.
[21] There was also other evidence concerning Ms MacDonell’s Subaru motor vehicle, in which some drug manufacturing items were found with Mr Williams’ fingerprints on two of them. As well, when he was arrested, he was in possession of a set of scales, a booklet entitled "Uncle Fester’s Secrets of Methamphetamine Manufacture" and a small bag of white powder which he admitted was "P".
[22] As indicated, Mr Speed was given leave to withdraw as counsel for the appellant by Harrison J on Monday 23 February 2004. At 11.20am the Judge had outlined the circumstances in Court in the presence of the appellant and recorded what he said in a minute:

[1] Mr Williams, I have conferred in chambers with Mr Speed and Mr Northwood this morning, i.e. in your absence and in the absence of the jury. Mr Speed has asked me for leave to withdraw from continuing to represent you in this trial. I should briefly explain the relevant circumstances.
[2] In your presence, Mr Williams, but in the absence of the jury, on Friday 20 February 2004 Mr Speed advised me that you had provided him with written instructions to enter a plea of guilty to count 2 in the indictment; i.e. the charge of conspiring with others to manufacture methamphetamine. It was, of course, as you know, implicit in those instructions that you admitted you were a participant in the various intercepted communications taped and relied upon by the Crown and that your voice was correctly identified by Detective Sergeants Bartlett and Davey. The instructions could not have been given on any other reasonable basis.
[3] This morning Mr Speed has advised me that you now intend to give evidence on oath in this Court in your own defence at the close of the Crown case. Moreover, he has advised that you will maintain your denial on oath in the witness box that your voice is the one identified by the police officers as a participant in numerous telephone discussions. Once that happens, Mr Williams, Mr Speed will himself be exposed to the risk of the crime of being a party to perjury. He would be placed in an intolerable position, both professionally and personally. He would be acting contrary to his overriding duties as an officer of the Court.
[4] It would be quite inappropriate and improper to expect Mr Speed to continue to act if you took that step. Accordingly, I am granting his request for leave to withdraw from continuing to act as your counsel for the balance of this trial. I understand from Mr Speed that he has communicated all of these circumstances to you and explained the reasons for his request.
Bench: Do you understand them yourself?
Mr Williams: Nods
Bench: You understand that by going into the witness box and denying the identification of your voice, you will be acting contrary to the express instructions you gave him last week?
Mr Williams: Nods

[23] The Judge then reiterated that he would not adjourn the trial for the purposes of engaging a new counsel, observing that Mr Williams had the opportunity to brief both Mr Speed and earlier another experienced counsel on his defence. Mr Williams said that he did not want to represent himself and could not continue without counsel. He told the Judge that the trial had reached a stage that was critical to his defence. The Judge adjourned the trial until 11.45am so that Mr Williams could talk informally with Mr Speed who was present in Court. That conference then took place.
[24] At 11.50am the Judge returned to court. Mr Williams said he would sit where he was and let the trial continue, but would not give evidence. The Judge offered him an adjournment until 2.00pm to seek legal advice. The Judge then recalled the jury to tell them of counsel’s withdrawal and that he was allowing Mr Williams an adjournment for two hours "to consult with somebody else as to how he wished to run his defence for the balance of the trial". Shortly after 2pm the Judge returned to the Court and dictated this bench note.

[1] ...The registry arranged for Ms Mary-Anne Lowe, who has acted as junior for all defence counsel in this trial, to advise Mr Williams after the Court adjourned at midday.
[2] When Court resumed at 2.05pm Ms Lowe advised that she had conferred with Mr Williams. She had hoped to obtain instructions from him that would enable a resolution of the charges but unfortunately she was unable to make progress down this avenue. Her position is similar to Mr Speed’s. She could not act formally for Mr Williams if he gave evidence, which cannot be ruled out at this stage. I granted her leave to withdraw.
[3] However, Ms Lowe advised that she and the registry had made inquiries of the Legal Services Board about the availability of a substitute counsel if Mr Williams wished to engage one. Mr Charles Cato may be available but not immediately or in the foreseeable few days. Ms Lowe observed that it would be very difficult, if not impossible, for a new counsel to assume responsibility for Mr Williams’ defence at this late stage of the trial when the Crown’s case is almost complete. I agree.
[4] As a consequence the trial will proceed. Mr Williams will represent himself. I have pointed out that he is entitled to cross-examine prosecution witnesses, open and close his case and call whomever he wants as a witness in his defence.

[25] When the trial resumed at 2.10pm on 23 February the Crown called a witness who gave evidence that Mr Williams had been present at an address in Titirangi when the witness served a notice to quit. The appellant had used Ms MacDonell’s car to shift belongings from that address. Mr Williams did not cross-examine that witness.
[26] The Crown then recalled Detective Sergeant Bartlett who gave evidence concerning what was said when Mr Williams was interviewed about taped conversations at Ms MacDonell’s apartment. Three tapes were involved. Mr Bartlett said it was his opinion that the voice of the male caller was that of Mr Williams. He also referred to items in Mr Williams’ possession. These included items in a snaplock bag including a brass knuckle duster. Mr Davey was later recalled and he also gave further evidence of voice identification. Mr Williams declined to cross-examine either witness.
[27] Another police officer, Mr Bartlett, then gave evidence concerning drugs that were found during the search of a motor vehicle which Mr Williams was driving when he was apprehended. Finally Mr Davey was recalled and gave evidence concerning what was found in clandestine drug laboratories. Mr Williams did not ask either witness any questions, although reminded by the Judge that he had the opportunity to do so, and that if he did not challenge Mr Bartlett the Judge would have to sum up on that basis.
[28] The issue raised by this ground of appeal concerns whether Mr Williams’ right to a fair trial was impaired, as a result of the trial continuing after his counsel withdrew. The rights concerned include those of persons who have been charged with an offence to consult and instruct a lawyer, to have adequate time and facilities to prepare a defence, to examine witnesses for the prosecution and to obtain the attendance of witnesses for the defence on the same conditions as apply to the prosecution (s 24(c), (d) and (f) New Zealand Bill of Rights Act 1990 and s 354 of the Crimes Act 1961).
[29] These rights are variously discussed by this Court in R v Shaw [1992] 1 NZLR 652, R v Ru (2001) 19 CRNZ 447 and R v Condon [2005] 1 NZLR 446. In Ru this Court said:

We are not unsympathetic to the pressures which District Courts find themselves facing daily and the frustration at the possibility of an adjournment. There are however clear legislative directions in this area (eg ss24(c) and (d) and 25(e) and (f) of the New Zealand Bill of Rights Act 1990; s10 of the Criminal Justice Act 1985). Moving work and disposing of cases are important factors but guaranteeing a fair trial can never be compromised.
Where as here the Judge was persuaded that he should grant counsel leave to withdraw, we are of the view that there was a clear obligation to provide the accused (then appearing for himself) an opportunity for an adjournment to obtain alternative counsel or at least to marshal his forces and to be ready to represent himself in Court.
Although no accused person should imagine that they can with impunity fail to take steps to protect themselves by undertaking adequate preparation for trial, or to summarily dismiss counsel immediately before a trial starts as a ploy to obtain an adjournment, the Court must still be vigilant to ensure that a person who is convicted had been found guilty at the end of a process which has integrity and the hallmarks of fairness.

[30] Whether these rights have been breached in a case such as the present must be determined having regard to all the circumstances of the trial, including the events that resulted in the loss of legal representation during its course. These circumstances may include who was responsible for counsel withdrawing, and in particular whether the accused person was seeking to manipulate the justice system through uncooperative behaviour. The public interest in the prompt, as well as fair administration of justice will usually be relevant.
[31] Where leave to withdraw is given to defence counsel during a trial, the right to a fair trial will usually require the trial judge to allow the defendant an adjournment, to obtain other counsel or at least to take advice in order to become ready to conduct the defence personally for the remainder of the trial. If the trial proceeds with the accused unrepresented and the outcome is a conviction the ultimate question on appeal will always be whether the way in which the trial judge dealt with the situation gives rise to a substantial possibility of there having been a miscarriage of justice.
[32] The circumstances in which Mr Williams ceased to be represented by counsel during the trial are somewhat unusual. From time to time an accused dismisses counsel who is said to be conducting the trial defence inadequately. An accused may also cause counsel to seek leave to withdraw by indicating that there is such a lack of confidence. In each case this is usually followed by a request for an adjournment to obtain other counsel.
[33] Where, as in this case, the circumstances are of the accused’s own making the trial judge will often suspect that the accused’s underlying purpose is to disrupt the trial, especially if it appears to be going badly for the accused (cf R v Hill and Turton CA26/02 and CA38/02 17 February 2003). In this case the Judge did not make an express finding of prevarication and in the absence of one we are not prepared to proceed on that basis. We do however reiterate that Mr Williams is responsible for the situation that arose to the extent that it was a consequence of a last minute decision not to proceed with a change of plea to guilty which had been foreshadowed by his counsel at the end of the previous week.
[34] Mr Wade has referred us to R v de Bruin (CA168/04 7 March 2005) which has been decided since the hearing of this appeal. In that case counsel for the appellant had withdrawn, with leave, on the eve of trial because fresh instructions given by the appellant as to the basis of the defence differed markedly from those given to the same counsel for the defence at an earlier trial. This Court concluded in de Bruin that counsel should not have been given leave to withdraw. That judgment offers us no particular assistance in the present case, however, as the circumstances giving rise to counsel’s application to withdraw did not include an implicit admission of guilt of the crimes charged. It was that aspect of the present case that caused Harrison J to grant Mr Speed leave to withdraw. The present case falls to be determined on its own particular circumstances.
[35] There are two features of principal significance in the present case. The first is the narrowness of the scope of Mr Williams’ defence in essence that it was not his voice on the tapes. The second is the stage that the trial had reached when he sought the adjournment to get new counsel. The Crown’s principal witness of voice identification had given his evidence which had been tested by defence counsel’s cross-examination. The Crown’s case was close to completion at this point.
[36] These matters indicate that Mr Williams’ narrow defence was already squarely before the jury. The extent of the cross-examination required of the remaining Crown witnesses would not have been extensive. Mr Williams would then have had to decide whether to give evidence on oath, or to confine himself to a final address to the jury. These options would of course have previously been carefully considered by his by then former counsel. It seems likely that in the context of this trial he would have been able to apprise Mr Williams of what was required sufficiently to enable Mr Williams to conduct the defence case for the remainder of his trial.
[37] Our impression is that the Crown’s case was a strong one as the voice identification evidence of Detective Sergeant Davey was supported by other evidence (led and cross-examined while Mr Williams still had counsel). There is further support for that impression in the conclusion Mr Williams had reached by 22 February, that he would be better off to change his plea to one of guilty. The significance of this factor is that it indicates that there was a degree of public interest in the trial proceeding to a conclusion.
[38] Had the Judge allowed an adjournment for sufficient time to enable Mr Williams to instruct new counsel it was highly likely that there would have been a further application by that counsel for more time to absorb what had happened in the trial. The likelihood of consequent disruption of the trial was high. These factors were clearly considered by the trial judge in deciding on what adjournment was necessary in the circumstances.
[39] One factor which might have influenced Mr Williams in his decision not to participate in the balance of his trial was that he did not wish to cross-examine or address the jury in circumstances where the prime issue in the trial was whether it was his voice they had heard on the intercept tapes. Any embarrassment that was caused was of course a consequence of his decision to revert to defending the case having earlier instructed counsel he would change his plea to one of guilty. The right to a fair trial and to present a defence does not immunise an appellant from detrimental consequences of decisions taken in the course of a trial. He was responsible for any difficulties that had arisen from his change of mind and could not expect the Judge to protect him from the consequences.
[40] Against that background we are satisfied that the Judge’s decision to allow Mr Williams only a short adjournment to take advice on how he would be able to conduct the remainder of the trial was not in breach of his fair trial rights. Mr Williams elected not to participate which may well have been the best approach from his perspective to the situation that had developed. But whether or not that was so we are satisfied that no miscarriage of justice resulted from his conviction because he was not represented during the final stages.
[41] Mr Williams’ second ground of appeal against conviction concerned evidence given by the police officer who searched the motor vehicle that Mr Williams was driving when apprehended. In addition to referring to other items of more direct relevance to the charges faced by Mr Williams, the witness referred to finding a knuckle-duster. Mr Wade argued that this evidence was highly prejudicial and of no probative value at all. We do not accept that submission. The fact that this appellant had a knuckle-duster in his possession, along with items such as scales, could reasonably be seen as an indication of criminality of a kind that included involvement with supply of drugs. The degree of relative prejudice of the possession of such a weapon was not so high that the relevant evidence should have been excluded. This ground is accordingly also rejected and the appeal against conviction must be dismissed.

Sentencing appeal: General

[42] Each of the appellants was charged with offending involving manufacture, distribution, and conspiracy to manufacture, methamphetamine and precursor drugs. Their offending had been detected during a police inquiry, code named "Operation Resort", that initially had focussed on the activities of Ms MacDonell, a drug distributor based in Auckland, and Ms Pue and Mr Hunt who were manufacturers of methamphetamine who lived at Waitara. There were links between the appellants, most notably through Ms MacDonell, but in sentencing them Harrison J accepted that the three manufacturing operations involved were being run independently and autonomously. He sentenced the appellants on that basis rather than on the more serious basis that they were joint participants in a wider overall criminal venture.
[43] In accordance with his view as to their equal culpability the Judge set a common starting point for sentencing each of the appellants. He assessed their offending as falling within the mid to upper level of the range for offending in the second category identified in R v Wallace and Christie [1999] 3 NZLR 159. The starting point in each case was seven years imprisonment which he adjusted, making allowance for the respective aggravating and mitigating factors that were features of the individual offending and the appellants’ personal circumstances. All but two of them had pleaded guilty before, or immediately following, the first trial and Ms MacDonell pleaded so after the second trial had commenced. Each received some credit for their late guilty plea. Mr Williams, of course, had been found guilty by the jury and received no such credit. In each case the Judge also imposed a minimum period of imprisonment under s 86(3) of the Sentencing Act 2002 for reasons we shall discuss. At the time the 2004 amendments to that section had not been enacted.
[44] In the course of his sentencing remarks the Judge observed that the manufacture, sale and distribution of methamphetamine in New Zealand had reached epidemic proportions. It was a real source of social destruction which wrecked lives on a scale not previously known with controlled drugs in New Zealand. Methamphetamine was heavily addictive and its effects were often followed by heavily violent behaviour. There was no challenge to these observations.
[45] The criminal activity of each of the appellants was also described as substantial and sophisticated commercial manufacturing and supply, with operations extending over a period of time, although not necessarily involving large quantities. There was a level of co-operation between them. The offending was premeditated and well thought out.

Ms Pue and Mr Hunt

[46] Ms Pue, along with Mr Hunt, had run what the Judge concluded was an efficient, effective, and profitable operation in Waitara. On eight occasions between late May and early December 2002 they had stayed at the Sky City Hotel in Auckland where the Judge found they regularly supplied the methamphetamine they had made to Ms MacDonell. On 17 December 2002 the room they were occupying was searched by the police and methamphetamine with a street value of $38,500 to $48,500, low weight electronic scales, empty packets of Sudafed tablets, $25,000 in cash, eight packets of Sudafed, and snap-lock bags containing 31.6 grams of pure methamphetamine with street value of $25,000 to $31,000, was found. The interception evidence satisfied the Judge that Ms Pue had been involved in cooking or manufacturing operations during eight days from September to December 2002. He concluded that she had unexplained income of $208,000 during the period from 1 May to 17 December 2002 from drug dealing. She had a previous conviction in 1994 for dealing in cannabis and had received an 18 month term of imprisonment. An extra 12 months was added to the starting point for that aggravating factor. She had pleaded guilty two days into the first trial, and while that was late the Judge accepted her plea was genuine and should be recognised. The principal mitigating factor was her responsibility for her children living with her, four of which were at primary school and one of whom was a teenager. The Judge took into account the sentencing principle stated in R v Harlen (2001) CRNZ 852 at [41] that:

...they should not be deprived of their right to your love and affection for longer than is necessary.

He allowed a discount of 18 months for these factors and imposed a term of six and a half years imprisonment.

[47] The Judge then discussed the Crown submission that a minimum term of imprisonment of 50% of the finite sentence should be imposed. He discussed the Court’s judgment in R v Brown [2002] 3 NZLR 670 and concluded that because the gravity of the offending, the need for accountability, promotion of responsibility, denunciation and deterrence, along with community protection, would normally call for a minimum term of 60% of the finite sentence. In view of the circumstances of her children, he reduced that and imposed a minimum term of three years imprisonment.
[48] In submissions on Ms Pue’s behalf, Ms Kennedy accepted that the starting point was within range but was critical of the treatment of the previous conviction in 1994 as an aggravating factor and also said a greater allowance should have been made for the children’s circumstances. She also submitted that the offending was not so serious as to meet the threshold for a minimum term under s 86(3) of the Sentencing Act 2002.
[49] Mr Stanaway for the Crown emphasised the need for deterrence in sentencing for offending involving manufacture and distribution of methamphetamine. In a submission applying to all appeals, in relation to the minimum term, he said that the well organised and linked nature of the operations of each appellant and their scope and size, was such that the threshold of sufficient seriousness was met. He emphasised the profitability of the operation of Ms Pue and Mr Hunt saying that the substantial sums of money and amounts of methamphetamine they made indicated it was on a large scale.
[50] Harrison J found that the profit made by Mr Hunt from his drug dealing fell within a range of $160,000 to $540,000. Whatever the actual sum it was a "huge" amount of money. The Judge had no doubt that Mr Hunt was manufacturing methamphetamine throughout the second half of 2002. Although he also visited Sky City to gamble, he principally came to Auckland to distribute drugs. His culpability was the same as that of Ms Pue.
[51] Mr Hunt had past convictions for possession of cannabis oil and plant, and also, in 2001, for cultivation of cannabis plant for supply for which he had received a six month sentence. These aggravating factors led to a twelve month addition to the term of his sentence. He had pleaded guilty only during the week before trial. On that account, and in recognition of efforts to re-establish his life after earlier offending the Judge made an allowance of twelve months’ imprisonment and sentenced him to a seven year term with a three and a half year minimum period.
[52] Mr Edgar took issue, in his submissions for Mr Hunt, with Harrison J’s findings concerning profitability, pointing to Mr Hunt’s gambling practices and his family financial situation. Counsel also said that the findings concerning the efficiency of the manufacturing operation he was involved in, and the quality and value of methamphetamine, lacked a sound basis in the material before the Judge. He argued that Mr Hunt, who was the father of Ms Pue’s four youngest children, should like her have received an allowance for his role in their care. He also argued that his client’s offending was insufficiently serious overall to warrant a minimum term of imprisonment.
[53] Mr Stanaway responded by saying that the Judge was in the best situation to assess Mr Hunt’s culpability from all the deposition material available to him. He instanced a passage in the transcript of an intercepted telephone call in which Mr Hunt told Ms Pue "he had just finished making some really good methamphetamine". We agree with the Crown’s argument on this point. The Crown case was based on the intercepted evidence, the regular trips to stay at the Sky City Hotel and the imbalance between Mr Hunt’s stated income and his assets. The laboratory he ran with Ms Pue was never located. The Judge, in our view, was careful as to the inferences he should draw in relation to the size, scope and nature of Mr Hunt’s manufacturing operations and there was ample support for them. He was entitled also to conclude that the extent of Mr Hunt’s involvement with their children was less than that of Ms Pue such that it did not warrant any discount for him in the sentence. Harrison J’s assessment of the scale of offending of Mr Hunt and Ms Pue was an entirely fair one and resulted in a proper starting point for the sentence imposed.
[54] The first question to be addressed in considering the appeals against the non-parole period is whether, in terms of s 86(2) and (3), as they stood before the 2004 amendment, the Judge could be satisfied that the offending was sufficiently serious to justify a minimum term of imprisonment that was greater than one third of the finite sentences. This required an assessment of the culpability of the offending and, in particular, consideration of whether aggravating features or other indications of particular gravity, in comparative terms, were such that the Court should exercise its power and make an exception to the general statutory policy that, subject to public safety considerations, offenders serving long term determinate sentences should be released on parole after they had served one third.
[55] In Brown at [32] the Court, having regard to the fact that large scale drug operations have major social effects, said that in cases of major drug dealing culpability might be increased to an important extent by the serious actual or intended consequences of the offending. The dictum was revisited in R v Wong and Cheng CA378/02, CA379/02 25 March 2003 where the Court considered whether a minimum term was appropriate in the case of two couriers who brought into New Zealand methamphetamine tablets, having a value between $300,000 and $800,000. The scale of that importation would have attracted a starting point for those involved in the organisation of the importation that was well above ten years imprisonment. The proper starting point for the more limited role of those appellants should have been nine years.
[56] In Wong and Chen the Court saw that the quantity and nature of the drug, being methamphetamine, took the case out of the ordinary run of class B offending although by a relatively narrow margin. It made the offending sufficiently serious for a minimum term.
[57] In the present instance, the factors that indicate increased culpability above the norm for class B drug offending were first the fact that methamphetamine was involved with all its pernicious social consequences. This factor of course applies to all appellants as does the Judge’s assessment of the offending as being with the mid to upper level of the second category described in R v Wallace and Christie [1993] 3 NZLR 159. This amounts to a finding that the offending involved commercial manufacture on a major scale, with a sophisticated and organised operation over a period. Had this been the extent of the gravity of the offending it is marginal whether the Judge could have decided the offending of Ms Pue and Mr Hunt was sufficiently serious to justify a minimum term of imprisonment. In their cases however the aggravating feature of prior drug offending involving possession for supply makes it sufficiently serious for the imposition of a minimum parole period. Their previous convictions further elevate the seriousness of their present offending and indicate a particular need for a deterrent sentence on this occasion. A minimum term of one third of the finite sentences they received was insufficient to punish, deter and denounce the offending.
[58] Thereafter it was a matter of sentencing judgment, after considering the circumstances of the offence and offender, as to what length of minimum term should be imposed. It was open to Harrison J to set this at three years for Ms Pue and three and a half years for Mr Hunt. It was generous of him to take into account the position of their children in relation to Ms Pue’s minimum term, as he had already made an allowance for that in her finite sentence. But no question of disparity arises, by his failure to do so for Mr Hunt whom the Judge obviously considered was taking a much lesser role in that respect. His sentencing notes show he was aware that Mr Hunt had seven children from two partners and their ages. We see no reason to find that the Judge made an error in deciding that Ms Pue’s childcare role differed from that of Mr Hunt. Nor is there any other reason for this Court to interfere with the minimum terms that were imposed on those two appellants.

Sentence appeal: Mr Allan

[59] Mr Allan was said by the Judge to have been operating a reasonably sophisticated methamphetamine laboratory since at least May 2002. His activity was observed on eight occasions between October and December 2002 and was described as intense. He had dealings with Ms Pue and Mr Hunt, as well as Ms MacDonell. The laboratory was searched and contained extensive plant and chemicals as well as methamphetamine. No aggravating features were identified by the Judge that warranted an increase on the starting point for his sentence of seven years imprisonment. Mr Allan had no previous convictions. He had been drawn into offending in part because of his own methamphetamine habit. He had however addressed it and with the strong support of his partner was seen as being at a low risk of reoffending.
[60] The Judge made allowance for Mr Allan’s late guilty plea and also his personal circumstances allowing him a discount of 18 months from his seven year starting point. He sentenced Mr Allan to five and a half years imprisonment. A minimum term of two years and nine months was imposed by the Judge.
[61] Mr Weir’s main submission was that Mr Allan’s offending was less serious than that of the others and was not of a degree of gravity to take it out of the normal range for which the one third statutory minimum period before he was eligible for parole would apply. He emphasised that his client had no previous convictions and that there were no aggravating features that might elevate the seriousness of the offending. Mr Weir submitted that the minimum parole period should be quashed.
[62] Mr Stanaway’s response was to emphasise the extent, scale and frequency of the manufacture of methamphetamine by Mr Allan and said that it was also being made for profit rather than simply to feed addiction. The laboratory was well established and equipped and capable of producing significant amounts of methamphetamine.
[63] The imposition of a minimum period of imprisonment should not be a routine response and must be justified. In R v M (2003) 20 CRNZ 231 at [6] a Full Court of this Court said of the "sufficiently serious" requirement under s 86(2):

It is from this method of expression that Parliament was directing the Court to consider the circumstances of the offence actually committed rather than the inherent seriousness of the offence in generic terms. A similar conclusion derives from the expression sufficiently serious itself. Those words clearly imply that the individual circumstances of some cases will not be sufficiently serious to justify a non parole period of more than one-third, notwithstanding that in generic terms the offence committed is inherently serious.

[64] The need to assess the individual circumstances of the case derives also from the statutory policy in relation to eligibility for parole that offenders "must not be detained any longer than is consistent with the safety of the community" (s 7(2)(a) Parole Act 2000). Under that Act, those serving long term determinate sentences became eligible for parole after serving one third rather than two thirds. For a minimum period of imprisonment to be imposed there must be a distinguishing aspect to the circumstances of the offending indicating particular seriousness. That may be signalled by the length of the lead sentence or, in crimes of violence, by factors such as particular brutality. In cases of drug dealing, previous offending pointing to a pattern of behaviour (as well as the scale of the instant offending may form part of the circumstances of the offence which provide the distinguishing element. The relevance of previous offending is made more explicit in the 2004 amendment to s 86 which includes reference to the purpose of protecting the community "from the offender".
[65] Mr Allan was certainly an active manufacturer of methamphetamine over a period and ran a sophisticated laboratory. The extent of his activity, as observed by police surveillance, and the capacity of his laboratory, does not however of itself demonstrate an extent of offending that takes the case outside of the "ordinary range". Unlike other appellants Mr Allan had no previous convictions and his cannot be categorised as recidivist offending. Having regard to all features of his offending, the overall gravity and the lack of aggravating features we have decided that the statutory threshold of sufficient seriousness for a minimum term was not made out in his case (cf Wong and Chen at [21]). The five and a half year term of imprisonment with the prospect of being eligible for consideration for parole after one third of that period is sufficient punishment.
[66] Mr Allan’s appeal is accordingly allowed to the extent that the minimum term of two years nine months imprisonment is quashed.

Mr Williams’ appeal

[67] Mr Williams was sentenced to eight and a half years imprisonment. On his behalf Mr Wade did not contend that the term was manifestly excessive, but did argue that in common with other counsel, there was no basis to impose as well a minimum term of imprisonment of 50% of the finite sentence. Mr Wade was critical of the lack of reference by the Judge to the circumstances of the offending which the Judge had decided warranted a minimum term.
[68] Mr Stanaway in response pointed out that the Judge had told Mr Williams that the comments made earlier during his sentencing remarks concerning the gravity of the offending and basis for the sentence applied equally to him.
[69] The evidence of tapes of intercepted communications established that Mr Williams was, as Mr Stanaway put it, "a free lance methamphetamine cook". He was also linked to numerous items of glassware, chemicals and by-products associated with manufacture when Ms MacDonell’s car, which he had been using, was searched. His fingerprints were also found on a 20 litre drum of Toluene and a glass beaker which were located in the car. He also had other items on his person pointing to his involvement in manufacture of methamphetamine when he was arrested.
[70] In the assessment of his overall culpability for the purposes of deciding if it was open to the Judge to impose a minimum term two matters stood out. First he had numerous previous convictions including one, in 2001, for conspiracy to manufacture methamphetamine. At the same time he had been convicted for cultivation of cannabis. He was sentenced to a three and a half year term for that offending. Secondly, Mr Williams was on parole following his release from prison when he committed the offences presently being considered. There were no countervailing mitigating factors. The Judge added 18 months to his starting point of seven years, and sentenced Mr Williams to eight and a half years imprisonment with a four and a half year minimum term.
[71] Mr Williams’ manufacturing activities were extensive and by virtue also of the nature of the drug his offending was serious. What clearly put it over the "sufficiently serious" threshold was that he had been convicted of serious drug offences in the year prior to his offending and indeed had then re-offended on parole. Overall his case was clearly one in which his release from prison after serving only one third of the term imposed would be inadequate punishment and would not meet the need to deter Mr Williams and others from future offending. The minimum term imposed was an appropriate one and Mr Williams’ appeal against sentence must also be dismissed.

Sentence appeal: Ms MacDonell

[72] Ms MacDonell was described by the Judge as a prodigious supplier of methamphetamine conducting a large number of sales facilitated by text messages and telephone. She received a steady stream of visitors to her apartment to purchase drugs. She also warehoused large quantities of precursor substances. There was no challenge in the appeal to the Judge applying to her as the distributor a seven years starting point for the sentence. Ms MacDonell also had a number of previous convictions for drug offending but none of them had carried a prison sentence. The convictions had reflected her drug addiction. The Judge decided not to treat the previous convictions as aggravating features.
[73] Ms MacDonell had pleaded guilty early during the second trial. The Judge allowed a one year discount for the plea and sentenced her to a six year term. The Judge said that a minimum term of imprisonment was inevitable. The circumstances of Ms MacDonell’s offending was sufficiently serious to cross the statutory threshold and a 50% term was imposed.
[74] As with Mr Williams it was the submission of Mr Cassidy for Ms MacDonell that there was no analysis of why s 86 should apply to this appellant. Mr Cassidy said that the Judge had accepted that, although she was a frequent vendor of drugs, most of the proceeds of her transactions were applied to feeding her addiction. He argued that the sales involved were not of a large scale in comparison to those of Mr Hunt and Ms Pue. Overall he submitted that the circumstances were not such as to be sufficiently serious to warrant a minimum term.
[75] In reply Mr Stanaway emphasised the central role of Ms MacDonell and the fact that she was the outlet for the three manufacturing operations in Waitara, Otahuhu and Turangi.
[76] As the distributor Ms MacDonell was implicated in the offending of the other appellants and the quantity and nature of the drug which she was distributing of itself was such as to take the case out of the ordinary run of class B drug offending and to make it sufficiently serious under s 86(2). This is a case in which it is the gravity of the actual offending itself that meets the sufficiently serious threshold. The Judge had the advantage of listening to tapes and reading transcripts of her involvement which clearly gave him a strong impression of the importance of her role. We accept that her personal circumstances were most unfortunate, but in the end the scale of this offending was treated leniently by the Judge in the finite sentence and our overall view is that the minimum term must stand.
[77] Ms MacDonell’s appeal against sentence accordingly is dismissed.

Solicitors:
Crown Law Office, Wellington

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[3]	The appellants were each sentenced by the trial Judge, Harrison J, to terms of imprisonment. Ms Pue, who had been involved in manufacture of methamphetamine at Waitara, and in its distribution at Auckland, was sentenced to six and a half years imprisonment with a minimum period of three years. Mr Hunt, who had been her partner, and who was involved with her in that offending received a sentence of seven years imprisonment with a minimum parole period of three and a half years.
[4]	The operation of Ms Pue and Mr Hunt was more profitable than those of other appellants. The Judge thought that was largely because Ms Pue and Mr Hunt were not addicted to their product. After they had manufactured a batch of methamphetamine their practice was to fly to Auckland where they would check into a leading city hotel and there meet Ms MacDonell. She would pay them in cash, by providing them with boxes of precursor products, or by both means. The journey from Taranaki to Auckland was made by Ms Pue and Mr Hunt eight times between 24 May 2002 and 17 December 2002.
[5]	Mr Allan, together with associates, manufactured methamphetamine in rented industrial premises. The premises had surveillance equipment and security devices and the Judge described them as sophisticated. The police arrived at their door on 17 December 2002 when Mr Allan was arrested. Intercepted telephone conversations showed that Mr Allan and a co-offender had manufactured methamphetamine frequently, and profitably, often using precursors supplied by Ms MacDonell. Mr Allan was sentenced to two concurrent terms of five and a half years imprisonment with a minimum period of imprisonment of two years and nine months.
[6]	Ms MacDonell distributed what each of the three manufacturing operations produced as well as supplying them with precursors. She dealt directly with the other appellants involved, was very active and had her own distribution network of buyers and middlemen. Buyers paid her either by cash or by themselves supplying Ms MacDonell with precursors. She was sentenced to six years imprisonment with a minimum term of three years.
[7]	The Crown case against Mr Williams at the trial was that he had conducted his operation from a rented property in Titirangi, manufacturing methamphetamine, frequently in substantial quantities. He had been observed in the course of the police surveillance doing so frequently producing substantial quantities. Mr Williams regularly relied on Ms MacDonell as a source for precursors. On his arrest Mr Williams told police that, prior to a previous conviction for dealing in methamphetamine, he had been able to earn $300,000 a year from that activity.
[8]	Following his conviction by the jury on charges of conspiracy to supply, supply and manufacture of methamphetamine he was sentenced to eight and a half years imprisonment with a minimum period of imprisonment of four and a half years.

[9]	Mr Williams was convicted by a jury in the High Court on 25 February 2004, following a trial which had commenced on 9 February, on one charge of conspiracy to supply methamphetamine, one charge of supply and one charge of manufacture of methamphetamine as a class B controlled drug. He appealed against both convictions and his sentence.
[10]	On Friday 20 February 2004, towards the end of the second trial, by which time Mr Williams was the only remaining defendant, Mr Williams’ trial counsel advised the Judge, in the presence of Mr Williams, that he had written instructions to enter a plea of guilty to the charge of conspiring to manufacture methamphetamine. Mr Williams had thereby implicitly admitted participating in communications that had been intercepted by the police and relied on by the Crown at the trial. At that point in the trial the principal issue in the Crown’s case against Mr Williams was whether the recorded voice of one of the participants had been correctly identified by police officers in their evidence as that of Mr Williams.
[11]	On Monday 23 February 2004 defence counsel advised the trial Judge that it was now Mr Williams’ intention to give evidence in his defence in which he would maintain his earlier denial that it was his voice on the tapes of intercepted calls, that the police had identified. Counsel then sought and was granted leave to withdraw from continuing to act for Mr Williams for the rest of the trial. The Judge told Mr Williams that his trial would continue and that he was not prepared to allow an adjournment for the purpose of his engaging fresh counsel. Mr Williams replied that he could not continue to defend the charges without counsel, and that he did not want to be present at the trial if that was to be his situation. After conferring informally with his former counsel Mr Williams indicated that he would remain while the trial continued but he would not give evidence or otherwise participate.
[12]	The jury then returned to the courtroom and Harrison J informed them that, his counsel having withdrawn, Mr Williams would have to make decisions about the future conduct of the trial himself. The Judge explained that he had allowed an adjournment until 2.15pm in order for Mr Williams to consult over how to run that defence. The Judge told Mr Williams that he would have no further time. Thereafter Mr Williams took no active part in his trial. As indicated he was convicted on the three charges he faced.
[13]	In his submissions to us on behalf of Mr Williams, in support of the appeal against conviction, Mr Wade said that it was his client’s trial counsel who had taken the initiative in withdrawing, albeit because of the dramatic change of instructions from his client. Mr Wade argued that there was a real possibility that the consequent lack of representation of Mr Williams during the remainder of the trial had resulted in a miscarriage of justice.
[14]	In support of this proposition Mr Wade relied on dicta of Lord Slynn of Hadley, in delivering the judgment of the Privy Council in John Mitchell v The Queen [1999] 1 WLR 1679, which suggested that where counsel had become professionally embarrassed during the course of a criminal trial, there should have been an adjournment in order to see whether other counsel were able and willing to take over representation of the appellant, or at least to give advice as to the courses that were open. Mr Wade also referred us to R v Ru (2001) 19 CRNZ 447.
[15]	Mr Stanaway for the Crown argued that Mr Williams was not entitled to an adjournment and submitted that there was no substantial possibility of a miscarriage of justice having occurred as a result of the way the Judge dealt with the situation when counsel withdrew.
[16]	The Crown’s case against all appellants had been based on tapes of numerous conversations involving those charged. A listening device, located in the apartment of Ms MacDonell in Auckland, had captured some of the conversations. Other messages were recorded during telephone intercepts. There was also evidence of captured telephone text messages. There was no dispute at trial that the content of the conversations and messages concerned the manufacture and supply of methamphetamine. Cross-examination of Crown witnesses by counsel for Mr Williams at the second trial, Mr Speed, rather concentrated on whether Mr Williams was a participant.
[17]	Mr Speed, cross-examined Detective Sergeant Davey, who was in charge of analysing and transcribing all intercepted audio and telephone conversations. He had prepared transcripts, identifying the voices he was listening to either through the persons concerned identifying themselves or from his own recognition of their voices. He was assisted by video tapes showing persons going into and out of the address at which Ms MacDonell lived which he could match with audio conversations inside recorded at the time. Detective Sergeant Davy’s evidence was that he had listened to the tapes for a total of over 600 hours and had become very familiar with the voices he had heard. When cross-examined by Mr Williams’ counsel he said he was 100% certain that he had attributed correct names to callers in all cases where he had done so.
[18]	The tapes themselves were played to the jury. Neither counsel sought to challenge the transcript record of what was being said or the interpretations that were being given to the conversations. Mr Speed’s questioning was rather concerned with the attribution to Mr Williams of what had been said. For example, in relation to a taped telephone conversation:

[19]	After further questioning along the same lines, with similar responses the Judge told counsel he did not have to maintain the same challenge at every interview in which Mr Davey had identified a voice as that of Mr Williams. The Court recorded that the defence challenge applied to every such identification and the Judge instructed the jury accordingly.
[20]	The Crown was also able to rely on evidence of extraneous matters to support the officer’s opinion evidence. The person said to be Mr Williams referred in one conversation to having an appointment at a particular place. The police were able to ascertain and show that Mr Williams had an appointment at the time and place concerned. Likewise, the video surveillance camera had provided images of Mr Williams visiting the apartment of Ms MacDonell, at a time when a conversation was recorded between her and the person who Mr Davey said was Mr Williams in which manufacture of methamphetamine was discussed.
[21]	There was also other evidence concerning Ms MacDonell’s Subaru motor vehicle, in which some drug manufacturing items were found with Mr Williams’ fingerprints on two of them. As well, when he was arrested, he was in possession of a set of scales, a booklet entitled "Uncle Fester’s Secrets of Methamphetamine Manufacture" and a small bag of white powder which he admitted was "P".
[22]	As indicated, Mr Speed was given leave to withdraw as counsel for the appellant by Harrison J on Monday 23 February 2004. At 11.20am the Judge had outlined the circumstances in Court in the presence of the appellant and recorded what he said in a minute:

[25]	When the trial resumed at 2.10pm on 23 February the Crown called a witness who gave evidence that Mr Williams had been present at an address in Titirangi when the witness served a notice to quit. The appellant had used Ms MacDonell’s car to shift belongings from that address. Mr Williams did not cross-examine that witness.
[26]	The Crown then recalled Detective Sergeant Bartlett who gave evidence concerning what was said when Mr Williams was interviewed about taped conversations at Ms MacDonell’s apartment. Three tapes were involved. Mr Bartlett said it was his opinion that the voice of the male caller was that of Mr Williams. He also referred to items in Mr Williams’ possession. These included items in a snaplock bag including a brass knuckle duster. Mr Davey was later recalled and he also gave further evidence of voice identification. Mr Williams declined to cross-examine either witness.
[27]	Another police officer, Mr Bartlett, then gave evidence concerning drugs that were found during the search of a motor vehicle which Mr Williams was driving when he was apprehended. Finally Mr Davey was recalled and gave evidence concerning what was found in clandestine drug laboratories. Mr Williams did not ask either witness any questions, although reminded by the Judge that he had the opportunity to do so, and that if he did not challenge Mr Bartlett the Judge would have to sum up on that basis.
[28]	The issue raised by this ground of appeal concerns whether Mr Williams’ right to a fair trial was impaired, as a result of the trial continuing after his counsel withdrew. The rights concerned include those of persons who have been charged with an offence to consult and instruct a lawyer, to have adequate time and facilities to prepare a defence, to examine witnesses for the prosecution and to obtain the attendance of witnesses for the defence on the same conditions as apply to the prosecution (s 24(c), (d) and (f) New Zealand Bill of Rights Act 1990 and s 354 of the Crimes Act 1961).
[29]	These rights are variously discussed by this Court in R v Shaw [1992] 1 NZLR 652, R v Ru (2001) 19 CRNZ 447 and R v Condon [2005] 1 NZLR 446. In Ru this Court said:

[30]	Whether these rights have been breached in a case such as the present must be determined having regard to all the circumstances of the trial, including the events that resulted in the loss of legal representation during its course. These circumstances may include who was responsible for counsel withdrawing, and in particular whether the accused person was seeking to manipulate the justice system through uncooperative behaviour. The public interest in the prompt, as well as fair administration of justice will usually be relevant.
[31]	Where leave to withdraw is given to defence counsel during a trial, the right to a fair trial will usually require the trial judge to allow the defendant an adjournment, to obtain other counsel or at least to take advice in order to become ready to conduct the defence personally for the remainder of the trial. If the trial proceeds with the accused unrepresented and the outcome is a conviction the ultimate question on appeal will always be whether the way in which the trial judge dealt with the situation gives rise to a substantial possibility of there having been a miscarriage of justice.
[32]	The circumstances in which Mr Williams ceased to be represented by counsel during the trial are somewhat unusual. From time to time an accused dismisses counsel who is said to be conducting the trial defence inadequately. An accused may also cause counsel to seek leave to withdraw by indicating that there is such a lack of confidence. In each case this is usually followed by a request for an adjournment to obtain other counsel.
[33]	Where, as in this case, the circumstances are of the accused’s own making the trial judge will often suspect that the accused’s underlying purpose is to disrupt the trial, especially if it appears to be going badly for the accused (cf R v Hill and Turton CA26/02 and CA38/02 17 February 2003). In this case the Judge did not make an express finding of prevarication and in the absence of one we are not prepared to proceed on that basis. We do however reiterate that Mr Williams is responsible for the situation that arose to the extent that it was a consequence of a last minute decision not to proceed with a change of plea to guilty which had been foreshadowed by his counsel at the end of the previous week.
[34]	Mr Wade has referred us to R v de Bruin (CA168/04 7 March 2005) which has been decided since the hearing of this appeal. In that case counsel for the appellant had withdrawn, with leave, on the eve of trial because fresh instructions given by the appellant as to the basis of the defence differed markedly from those given to the same counsel for the defence at an earlier trial. This Court concluded in de Bruin that counsel should not have been given leave to withdraw. That judgment offers us no particular assistance in the present case, however, as the circumstances giving rise to counsel’s application to withdraw did not include an implicit admission of guilt of the crimes charged. It was that aspect of the present case that caused Harrison J to grant Mr Speed leave to withdraw. The present case falls to be determined on its own particular circumstances.
[35]	There are two features of principal significance in the present case. The first is the narrowness of the scope of Mr Williams’ defence in essence that it was not his voice on the tapes. The second is the stage that the trial had reached when he sought the adjournment to get new counsel. The Crown’s principal witness of voice identification had given his evidence which had been tested by defence counsel’s cross-examination. The Crown’s case was close to completion at this point.
[36]	These matters indicate that Mr Williams’ narrow defence was already squarely before the jury. The extent of the cross-examination required of the remaining Crown witnesses would not have been extensive. Mr Williams would then have had to decide whether to give evidence on oath, or to confine himself to a final address to the jury. These options would of course have previously been carefully considered by his by then former counsel. It seems likely that in the context of this trial he would have been able to apprise Mr Williams of what was required sufficiently to enable Mr Williams to conduct the defence case for the remainder of his trial.
[37]	Our impression is that the Crown’s case was a strong one as the voice identification evidence of Detective Sergeant Davey was supported by other evidence (led and cross-examined while Mr Williams still had counsel). There is further support for that impression in the conclusion Mr Williams had reached by 22 February, that he would be better off to change his plea to one of guilty. The significance of this factor is that it indicates that there was a degree of public interest in the trial proceeding to a conclusion.
[38]	Had the Judge allowed an adjournment for sufficient time to enable Mr Williams to instruct new counsel it was highly likely that there would have been a further application by that counsel for more time to absorb what had happened in the trial. The likelihood of consequent disruption of the trial was high. These factors were clearly considered by the trial judge in deciding on what adjournment was necessary in the circumstances.
[39]	One factor which might have influenced Mr Williams in his decision not to participate in the balance of his trial was that he did not wish to cross-examine or address the jury in circumstances where the prime issue in the trial was whether it was his voice they had heard on the intercept tapes. Any embarrassment that was caused was of course a consequence of his decision to revert to defending the case having earlier instructed counsel he would change his plea to one of guilty. The right to a fair trial and to present a defence does not immunise an appellant from detrimental consequences of decisions taken in the course of a trial. He was responsible for any difficulties that had arisen from his change of mind and could not expect the Judge to protect him from the consequences.
[40]	Against that background we are satisfied that the Judge’s decision to allow Mr Williams only a short adjournment to take advice on how he would be able to conduct the remainder of the trial was not in breach of his fair trial rights. Mr Williams elected not to participate which may well have been the best approach from his perspective to the situation that had developed. But whether or not that was so we are satisfied that no miscarriage of justice resulted from his conviction because he was not represented during the final stages.
[41]	Mr Williams’ second ground of appeal against conviction concerned evidence given by the police officer who searched the motor vehicle that Mr Williams was driving when apprehended. In addition to referring to other items of more direct relevance to the charges faced by Mr Williams, the witness referred to finding a knuckle-duster. Mr Wade argued that this evidence was highly prejudicial and of no probative value at all. We do not accept that submission. The fact that this appellant had a knuckle-duster in his possession, along with items such as scales, could reasonably be seen as an indication of criminality of a kind that included involvement with supply of drugs. The degree of relative prejudice of the possession of such a weapon was not so high that the relevant evidence should have been excluded. This ground is accordingly also rejected and the appeal against conviction must be dismissed.

[42]	Each of the appellants was charged with offending involving manufacture, distribution, and conspiracy to manufacture, methamphetamine and precursor drugs. Their offending had been detected during a police inquiry, code named "Operation Resort", that initially had focussed on the activities of Ms MacDonell, a drug distributor based in Auckland, and Ms Pue and Mr Hunt who were manufacturers of methamphetamine who lived at Waitara. There were links between the appellants, most notably through Ms MacDonell, but in sentencing them Harrison J accepted that the three manufacturing operations involved were being run independently and autonomously. He sentenced the appellants on that basis rather than on the more serious basis that they were joint participants in a wider overall criminal venture.
[43]	In accordance with his view as to their equal culpability the Judge set a common starting point for sentencing each of the appellants. He assessed their offending as falling within the mid to upper level of the range for offending in the second category identified in R v Wallace and Christie [1999] 3 NZLR 159. The starting point in each case was seven years imprisonment which he adjusted, making allowance for the respective aggravating and mitigating factors that were features of the individual offending and the appellants’ personal circumstances. All but two of them had pleaded guilty before, or immediately following, the first trial and Ms MacDonell pleaded so after the second trial had commenced. Each received some credit for their late guilty plea. Mr Williams, of course, had been found guilty by the jury and received no such credit. In each case the Judge also imposed a minimum period of imprisonment under s 86(3) of the Sentencing Act 2002 for reasons we shall discuss. At the time the 2004 amendments to that section had not been enacted.
[44]	In the course of his sentencing remarks the Judge observed that the manufacture, sale and distribution of methamphetamine in New Zealand had reached epidemic proportions. It was a real source of social destruction which wrecked lives on a scale not previously known with controlled drugs in New Zealand. Methamphetamine was heavily addictive and its effects were often followed by heavily violent behaviour. There was no challenge to these observations.
[45]	The criminal activity of each of the appellants was also described as substantial and sophisticated commercial manufacturing and supply, with operations extending over a period of time, although not necessarily involving large quantities. There was a level of co-operation between them. The offending was premeditated and well thought out.

[47]	The Judge then discussed the Crown submission that a minimum term of imprisonment of 50% of the finite sentence should be imposed. He discussed the Court’s judgment in R v Brown [2002] 3 NZLR 670 and concluded that because the gravity of the offending, the need for accountability, promotion of responsibility, denunciation and deterrence, along with community protection, would normally call for a minimum term of 60% of the finite sentence. In view of the circumstances of her children, he reduced that and imposed a minimum term of three years imprisonment.
[48]	In submissions on Ms Pue’s behalf, Ms Kennedy accepted that the starting point was within range but was critical of the treatment of the previous conviction in 1994 as an aggravating factor and also said a greater allowance should have been made for the children’s circumstances. She also submitted that the offending was not so serious as to meet the threshold for a minimum term under s 86(3) of the Sentencing Act 2002.
[49]	Mr Stanaway for the Crown emphasised the need for deterrence in sentencing for offending involving manufacture and distribution of methamphetamine. In a submission applying to all appeals, in relation to the minimum term, he said that the well organised and linked nature of the operations of each appellant and their scope and size, was such that the threshold of sufficient seriousness was met. He emphasised the profitability of the operation of Ms Pue and Mr Hunt saying that the substantial sums of money and amounts of methamphetamine they made indicated it was on a large scale.
[50]	Harrison J found that the profit made by Mr Hunt from his drug dealing fell within a range of $160,000 to $540,000. Whatever the actual sum it was a "huge" amount of money. The Judge had no doubt that Mr Hunt was manufacturing methamphetamine throughout the second half of 2002. Although he also visited Sky City to gamble, he principally came to Auckland to distribute drugs. His culpability was the same as that of Ms Pue.
[51]	Mr Hunt had past convictions for possession of cannabis oil and plant, and also, in 2001, for cultivation of cannabis plant for supply for which he had received a six month sentence. These aggravating factors led to a twelve month addition to the term of his sentence. He had pleaded guilty only during the week before trial. On that account, and in recognition of efforts to re-establish his life after earlier offending the Judge made an allowance of twelve months’ imprisonment and sentenced him to a seven year term with a three and a half year minimum period.
[52]	Mr Edgar took issue, in his submissions for Mr Hunt, with Harrison J’s findings concerning profitability, pointing to Mr Hunt’s gambling practices and his family financial situation. Counsel also said that the findings concerning the efficiency of the manufacturing operation he was involved in, and the quality and value of methamphetamine, lacked a sound basis in the material before the Judge. He argued that Mr Hunt, who was the father of Ms Pue’s four youngest children, should like her have received an allowance for his role in their care. He also argued that his client’s offending was insufficiently serious overall to warrant a minimum term of imprisonment.
[53]	Mr Stanaway responded by saying that the Judge was in the best situation to assess Mr Hunt’s culpability from all the deposition material available to him. He instanced a passage in the transcript of an intercepted telephone call in which Mr Hunt told Ms Pue "he had just finished making some really good methamphetamine". We agree with the Crown’s argument on this point. The Crown case was based on the intercepted evidence, the regular trips to stay at the Sky City Hotel and the imbalance between Mr Hunt’s stated income and his assets. The laboratory he ran with Ms Pue was never located. The Judge, in our view, was careful as to the inferences he should draw in relation to the size, scope and nature of Mr Hunt’s manufacturing operations and there was ample support for them. He was entitled also to conclude that the extent of Mr Hunt’s involvement with their children was less than that of Ms Pue such that it did not warrant any discount for him in the sentence. Harrison J’s assessment of the scale of offending of Mr Hunt and Ms Pue was an entirely fair one and resulted in a proper starting point for the sentence imposed.
[54]	The first question to be addressed in considering the appeals against the non-parole period is whether, in terms of s 86(2) and (3), as they stood before the 2004 amendment, the Judge could be satisfied that the offending was sufficiently serious to justify a minimum term of imprisonment that was greater than one third of the finite sentences. This required an assessment of the culpability of the offending and, in particular, consideration of whether aggravating features or other indications of particular gravity, in comparative terms, were such that the Court should exercise its power and make an exception to the general statutory policy that, subject to public safety considerations, offenders serving long term determinate sentences should be released on parole after they had served one third.
[55]	In Brown at [32] the Court, having regard to the fact that large scale drug operations have major social effects, said that in cases of major drug dealing culpability might be increased to an important extent by the serious actual or intended consequences of the offending. The dictum was revisited in R v Wong and Cheng CA378/02, CA379/02 25 March 2003 where the Court considered whether a minimum term was appropriate in the case of two couriers who brought into New Zealand methamphetamine tablets, having a value between $300,000 and $800,000. The scale of that importation would have attracted a starting point for those involved in the organisation of the importation that was well above ten years imprisonment. The proper starting point for the more limited role of those appellants should have been nine years.
[56]	In Wong and Chen the Court saw that the quantity and nature of the drug, being methamphetamine, took the case out of the ordinary run of class B offending although by a relatively narrow margin. It made the offending sufficiently serious for a minimum term.
[57]	In the present instance, the factors that indicate increased culpability above the norm for class B drug offending were first the fact that methamphetamine was involved with all its pernicious social consequences. This factor of course applies to all appellants as does the Judge’s assessment of the offending as being with the mid to upper level of the second category described in R v Wallace and Christie [1993] 3 NZLR 159. This amounts to a finding that the offending involved commercial manufacture on a major scale, with a sophisticated and organised operation over a period. Had this been the extent of the gravity of the offending it is marginal whether the Judge could have decided the offending of Ms Pue and Mr Hunt was sufficiently serious to justify a minimum term of imprisonment. In their cases however the aggravating feature of prior drug offending involving possession for supply makes it sufficiently serious for the imposition of a minimum parole period. Their previous convictions further elevate the seriousness of their present offending and indicate a particular need for a deterrent sentence on this occasion. A minimum term of one third of the finite sentences they received was insufficient to punish, deter and denounce the offending.
[58]	Thereafter it was a matter of sentencing judgment, after considering the circumstances of the offence and offender, as to what length of minimum term should be imposed. It was open to Harrison J to set this at three years for Ms Pue and three and a half years for Mr Hunt. It was generous of him to take into account the position of their children in relation to Ms Pue’s minimum term, as he had already made an allowance for that in her finite sentence. But no question of disparity arises, by his failure to do so for Mr Hunt whom the Judge obviously considered was taking a much lesser role in that respect. His sentencing notes show he was aware that Mr Hunt had seven children from two partners and their ages. We see no reason to find that the Judge made an error in deciding that Ms Pue’s childcare role differed from that of Mr Hunt. Nor is there any other reason for this Court to interfere with the minimum terms that were imposed on those two appellants.

[59]	Mr Allan was said by the Judge to have been operating a reasonably sophisticated methamphetamine laboratory since at least May 2002. His activity was observed on eight occasions between October and December 2002 and was described as intense. He had dealings with Ms Pue and Mr Hunt, as well as Ms MacDonell. The laboratory was searched and contained extensive plant and chemicals as well as methamphetamine. No aggravating features were identified by the Judge that warranted an increase on the starting point for his sentence of seven years imprisonment. Mr Allan had no previous convictions. He had been drawn into offending in part because of his own methamphetamine habit. He had however addressed it and with the strong support of his partner was seen as being at a low risk of reoffending.
[60]	The Judge made allowance for Mr Allan’s late guilty plea and also his personal circumstances allowing him a discount of 18 months from his seven year starting point. He sentenced Mr Allan to five and a half years imprisonment. A minimum term of two years and nine months was imposed by the Judge.
[61]	Mr Weir’s main submission was that Mr Allan’s offending was less serious than that of the others and was not of a degree of gravity to take it out of the normal range for which the one third statutory minimum period before he was eligible for parole would apply. He emphasised that his client had no previous convictions and that there were no aggravating features that might elevate the seriousness of the offending. Mr Weir submitted that the minimum parole period should be quashed.
[62]	Mr Stanaway’s response was to emphasise the extent, scale and frequency of the manufacture of methamphetamine by Mr Allan and said that it was also being made for profit rather than simply to feed addiction. The laboratory was well established and equipped and capable of producing significant amounts of methamphetamine.
[63]	The imposition of a minimum period of imprisonment should not be a routine response and must be justified. In R v M (2003) 20 CRNZ 231 at [6] a Full Court of this Court said of the "sufficiently serious" requirement under s 86(2):

[64]	The need to assess the individual circumstances of the case derives also from the statutory policy in relation to eligibility for parole that offenders "must not be detained any longer than is consistent with the safety of the community" (s 7(2)(a) Parole Act 2000). Under that Act, those serving long term determinate sentences became eligible for parole after serving one third rather than two thirds. For a minimum period of imprisonment to be imposed there must be a distinguishing aspect to the circumstances of the offending indicating particular seriousness. That may be signalled by the length of the lead sentence or, in crimes of violence, by factors such as particular brutality. In cases of drug dealing, previous offending pointing to a pattern of behaviour (as well as the scale of the instant offending may form part of the circumstances of the offence which provide the distinguishing element. The relevance of previous offending is made more explicit in the 2004 amendment to s 86 which includes reference to the purpose of protecting the community "from the offender".
[65]	Mr Allan was certainly an active manufacturer of methamphetamine over a period and ran a sophisticated laboratory. The extent of his activity, as observed by police surveillance, and the capacity of his laboratory, does not however of itself demonstrate an extent of offending that takes the case outside of the "ordinary range". Unlike other appellants Mr Allan had no previous convictions and his cannot be categorised as recidivist offending. Having regard to all features of his offending, the overall gravity and the lack of aggravating features we have decided that the statutory threshold of sufficient seriousness for a minimum term was not made out in his case (cf Wong and Chen at [21]). The five and a half year term of imprisonment with the prospect of being eligible for consideration for parole after one third of that period is sufficient punishment.
[66]	Mr Allan’s appeal is accordingly allowed to the extent that the minimum term of two years nine months imprisonment is quashed.

[67]	Mr Williams was sentenced to eight and a half years imprisonment. On his behalf Mr Wade did not contend that the term was manifestly excessive, but did argue that in common with other counsel, there was no basis to impose as well a minimum term of imprisonment of 50% of the finite sentence. Mr Wade was critical of the lack of reference by the Judge to the circumstances of the offending which the Judge had decided warranted a minimum term.
[68]	Mr Stanaway in response pointed out that the Judge had told Mr Williams that the comments made earlier during his sentencing remarks concerning the gravity of the offending and basis for the sentence applied equally to him.
[69]	The evidence of tapes of intercepted communications established that Mr Williams was, as Mr Stanaway put it, "a free lance methamphetamine cook". He was also linked to numerous items of glassware, chemicals and by-products associated with manufacture when Ms MacDonell’s car, which he had been using, was searched. His fingerprints were also found on a 20 litre drum of Toluene and a glass beaker which were located in the car. He also had other items on his person pointing to his involvement in manufacture of methamphetamine when he was arrested.
[70]	In the assessment of his overall culpability for the purposes of deciding if it was open to the Judge to impose a minimum term two matters stood out. First he had numerous previous convictions including one, in 2001, for conspiracy to manufacture methamphetamine. At the same time he had been convicted for cultivation of cannabis. He was sentenced to a three and a half year term for that offending. Secondly, Mr Williams was on parole following his release from prison when he committed the offences presently being considered. There were no countervailing mitigating factors. The Judge added 18 months to his starting point of seven years, and sentenced Mr Williams to eight and a half years imprisonment with a four and a half year minimum term.
[71]	Mr Williams’ manufacturing activities were extensive and by virtue also of the nature of the drug his offending was serious. What clearly put it over the "sufficiently serious" threshold was that he had been convicted of serious drug offences in the year prior to his offending and indeed had then re-offended on parole. Overall his case was clearly one in which his release from prison after serving only one third of the term imposed would be inadequate punishment and would not meet the need to deter Mr Williams and others from future offending. The minimum term imposed was an appropriate one and Mr Williams’ appeal against sentence must also be dismissed.

[72]	Ms MacDonell was described by the Judge as a prodigious supplier of methamphetamine conducting a large number of sales facilitated by text messages and telephone. She received a steady stream of visitors to her apartment to purchase drugs. She also warehoused large quantities of precursor substances. There was no challenge in the appeal to the Judge applying to her as the distributor a seven years starting point for the sentence. Ms MacDonell also had a number of previous convictions for drug offending but none of them had carried a prison sentence. The convictions had reflected her drug addiction. The Judge decided not to treat the previous convictions as aggravating features.
[73]	Ms MacDonell had pleaded guilty early during the second trial. The Judge allowed a one year discount for the plea and sentenced her to a six year term. The Judge said that a minimum term of imprisonment was inevitable. The circumstances of Ms MacDonell’s offending was sufficiently serious to cross the statutory threshold and a 50% term was imposed.
[74]	As with Mr Williams it was the submission of Mr Cassidy for Ms MacDonell that there was no analysis of why s 86 should apply to this appellant. Mr Cassidy said that the Judge had accepted that, although she was a frequent vendor of drugs, most of the proceeds of her transactions were applied to feeding her addiction. He argued that the sales involved were not of a large scale in comparison to those of Mr Hunt and Ms Pue. Overall he submitted that the circumstances were not such as to be sufficiently serious to warrant a minimum term.
[75]	In reply Mr Stanaway emphasised the central role of Ms MacDonell and the fact that she was the outlet for the three manufacturing operations in Waitara, Otahuhu and Turangi.
[76]	As the distributor Ms MacDonell was implicated in the offending of the other appellants and the quantity and nature of the drug which she was distributing of itself was such as to take the case out of the ordinary run of class B drug offending and to make it sufficiently serious under s 86(2). This is a case in which it is the gravity of the actual offending itself that meets the sufficiently serious threshold. The Judge had the advantage of listening to tapes and reading transcripts of her involvement which clearly gave him a strong impression of the importance of her role. We accept that her personal circumstances were most unfortunate, but in the end the scale of this offending was treated leniently by the Judge in the finite sentence and our overall view is that the minimum term must stand.
[77]	Ms MacDonell’s appeal against sentence accordingly is dismissed.