Szucs v R [2012] NZCA 424 (17 September 2012)

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Szucs v R [2012] NZCA 424 (17 September 2012)

Last Updated: 26 September 2012

IN THE COURT OF APPEAL OF NEW ZEALAND

CA130/2012 [2012] NZCA 424

BETWEEN MARK TONY SZUCS Appellant

AND THE QUEEN Respondent

Hearing: 22 August 2012

Court: Harrison, Courtney and Andrews JJ

Appearances: H D M Lawry for Appellant M D Downs for Respondent

Judgment: 17 September 2012 at 10.30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] Following a jury trial in the District Court at Papakura in November 2011 before Judge McAuslan the appellant, Mark Tony Szucs, was found guilty[1] of manufacturing methamphetamine and having in his possession materials and equipment capable of being used for manufacturing methamphetamine. He was sentenced to four-and-a-half years imprisonment on the manufacturing charges and 18 months imprisonment concurrently on the possession charges.[2] He now appeals both his conviction and sentence.
[2] The appeal against conviction is brought on the ground that the verdict was unreasonable because, having regard to all of the evidence, the jury could not reasonably have been satisfied beyond reasonable doubt as to his guilt. The appeal against his sentence is brought on the ground that it is manifestly excessive as a result of the Judge adopting too high a starting point and imposing too great an uplift to reflect the totality of the offending.

Appeal against conviction

[3] In August 2009 Mr Szucs was living in a rental property in Bucklands Beach which he had occupied for several years. His brother, John Szucs, and two others had moved into the property in early August. On 27 August 2009 the Police executed a search warrant at the property and found a number of items which suggested that Mr Szucs had manufactured methamphetamine at the property.
[4] In Mr Szucs’s bedroom (which was temporarily occupied by his sister) the Police found a document entitled “Secrets of manufacturing methamphetamine” which was badly stained and bore Mr Szucs’s fingerprints. They also found electronic scales and snap-lock bags, both bearing traces of methamphetamine.
[5] In the kitchen methamphetamine was detected in swabs taken from the extractor fan in the kitchen. Methamphetamine was also detected on swabs taken between the kitchen and hallway and on a sliding door leading to the bedroom. A set of electronic scales bearing traces of methamphetamine was also found in the kitchen.
[6] In the laundry there were toluene, acetone, methylated spirits and a variety of bakeware. One of these items held two-layered liquids later found to contain pseudoephedrine and methamphetamine. Swabs taken from a wall and the ceiling in the laundry contained pseudoephedrine.
[7] The sleepout that Mr Szucs used as workshop for his jewellery business contained toluene and three vessels containing two-layered liquids. Two of these held toluene and methamphetamine and a third held toluene, pseudoephedrine and hydrochloric acid.
[8] In other parts of the house there were items implicating the other occupants which were not directly linked to Mr Szucs.
[9] Mr Lawry, for Mr Szucs, argued that, at its highest, the evidence proved only that pseudoephedrine had been manufactured and methamphetamine consumed in the house; it did not prove that methamphetamine had actually been manufactured in the house. Mr Lawry relied on the evidence of Melanie Snow, a forensic scientist called by the Crown. She said that the presence of methamphetamine in swabs taken from the kitchen and hall could have been due either to the manufacture of methamphetamine or the consumption of methamphetamine. Nor could Ms Snow confirm that the equipment and materials at the address had been used to produce methamphetamine at that address or elsewhere.
[10] Mr Lawry also emphasised the fact that iodine, an essential ingredient in the production of methamphetamine, was not found at the address (all of the other necessary ingredients were present). Ms Snow said in re-examination that the most common form of iodine was crystalline solid iodine, which could be obtained from chemical companies. She was not questioned on how easy it is to obtain iodine from this source so Mr Lawry’s submission that iodine is not readily available had no evidential basis.
[11] Mr Lawry also submitted that the presence of scales and snap-lock bags at the address was explicable by the fact that one of the occupants of the house, Mr Pawa, had been dealing in methamphetamine.
[12] It is clear that Ms Snow’s evidence in itself did not prove that methamphetamine had been manufactured there. But the Crown case was a broad circumstantial case. We consider that the jury could reasonably have concluded, on totality of the evidence, that Mr Szucs had been involved in manufacturing methamphetamine in the house. In particular, Ms Snow considered that the deposits of pseudoephedrine in the laundry were most likely to have been produced during the extraction of pseudoephedrine and the only purpose of that process is to manufacture methamphetamine. Similarly, one of the containers of two-layered liquid including toluene and pseudoephedrine had probably been produced as part of the extraction process. Other containers which held two-layered liquids containing toluene and methamphetamine were consistent with the extraction of methamphetamine from the reaction mixture prior to separation and drying. The document containing the instructions for making methamphetamine found in Mr Szucs’s bedroom and bearing his fingerprints was a strong piece of circumstantial evidence.
[13] In this respect it is significant that Mr Lawry, who also appeared at trial, did not at the end of the prosecution case apply for an order discharging Mr Szucs under s 347 of the Crimes Act 1961. Mr Lawry sought to explain away his decision not to take this step. But he accepted that failure to apply implied an acceptance that there was at that stage a sufficient evidential basis upon which a jury could reasonably convict Mr Szucs.[3]
[14] Mr Szucs elected to give evidence and offered an explanation for having the document and chemicals. This was that they were among a large number of items that had been brought to the house, unsolicited, by the partner of his late mother. Mr Szucs said that he had used both the instruction document and the chemicals for his jewellery business. However, he also admitted in cross-examination that in the couple of years prior to August 2009 he had only done “a little bit” of jewellery work for personal clients who “sometimes” paid him.
[15] Mr Szucs did not assume any burden when he gave his explanation. However, his explanation was implausible and the jury was entitled to reject it. The presence of the document, equipment, materials and the residue consistent with the extraction process, including in areas of the house that Mr Szucs occupied or used, was strong circumstantial evidence that justified the jury’s conclusion that he had been involved in manufacturing methamphetamine in the house.
[16] The appeal against conviction is dismissed.

Appeal against sentence

[17] In sentencing the Judge placed the case within band 2 of R v Fatu,[4] which relates to the manufacture of methamphetamine of up to 250 grams and attracts a starting point between four and 11 years. Although the Judge did not make specific findings she clearly proceeded on the basis that 30–50 grams of methamphetamine had been manufactured and that the manufacturing had a commercial purpose:

[20] The difficulty, expense and risks involved render it inherently unlikely that people would manufacture exclusively for personal consumption and the Crown in support of the commercial nature of the operation at the address notes that the evidence was that neither of you were working. They also note the 50 mls of hypophosphorous acid located and the evidence of the scientist, Mr Russell.

[21] His evidence was based on published yield factors of the conversion of pseudoephedrine to methamphetamine using hypophosphorous acid. The amount of methamphetamine that could potentially be produced with that amount of the latter was up to approximately 46 grams. That is the basis of the Crown’s submission that conservatively the Court should accept that at least manufacture to the extent of between 30 and 50 grams was taking place.

[18] On this basis, the Judge took five years as representing the appropriate sentence for the lead offences, uplifted to reflect totality:

[33] On all of the information before me the starting point for you can be something less than put forward by the Crown. I accept on the facts of this particular case that on the totality of the offending, taking the manufacture as the lead offence but the others as aggravating features, that the starting point can be one of five years.

[19] The evidence referred to by the Judge in determining the quantity of methamphetamine manufactured is not contained in the case on appeal. However, Mr Lawry did not challenge the Judge’s finding as to the amount of methamphetamine manufactured, and we therefore do not need to consider this aspect. Mr Lawry’s submission was that there was no evidence of commerciality and the Judge was therefore wrong to approach sentencing on the basis that the manufacturing had been done on a commercial basis.
[20] At the sentencing hearing, and before us, Mr Lawry did not suggest that the methamphetamine that had been manufactured had been for personal use. The submission was merely that there was no evidence of commerciality. The Judge specifically referred to Mr Lawry’s submissions on the point:[5]

There is a considerable disparity between [Mr Lawry’s] views and those of the Crown. He does not accept the factors that the Crown submits support the commercial nature of this offending. He submits that there was no tick list, no large amount of cash located and that is so. He has provided the Court with a list of authorities in support of his submission that the starting point could be one of three years with no uplift for the other charges which are simply part of the manufacture and the end sentence should be between two to three years imprisonment. I have lengthy written submissions from him in support of that outcome.

[21] Mr Lawry relied on this Court’s decision in R v Kawerau and the fact that there have now been a number of cases in which a starting point below four years has been taken where there is no commerciality and the manufacturing has been for personal use.[6] These were, presumably, the same decisions as the sentencing Judge was referred to. However, a review of those decisions shows that starting points of less than four years have only been adopted where the Judge has proceeded on the basis (often with the agreement of the Crown) that the manufacturing operation involved had no element of commerciality about it and was simply for personal use.[7] That is not the position here. Although the Judge did not actually articulate a decision on the issue of commerciality, it is implicit in her general comments and in the sentence ultimately imposed that she did consider that the manufacturing had been commercial.
[22] It was apparent from the evidence of the large number of snap-lock bags and the scales found at the house that the Crown had always asserted that there was an element of commerciality in the manufacturing operation. Mr Downs, for the Crown, submitted that on the basis of Fatu, all other things being equal, it is to be expected that people do not go to the trouble of manufacturing methamphetamine solely for personal use. He also pointed out that if Mr Szucs had wanted to argue over the commerciality aspect a disputed facts hearing was the appropriate course.
[23] Mr Lawry expressed uncertainty as to whether, in fact, the disputed facts hearing procedure was open to him. But it clearly was. Even in this Court there was no suggestion that, had Mr Szucs proceeded to a disputed facts hearing, he would or could have produced evidence that might have put a different complexion on the case from that taken by the Judge. Although it is possible for this Court to hold a disputed facts hearing in appropriate cases, this is not such a case. It was open to the Judge on the evidence to find an element of commerciality and there is no basis on which to interfere with her Honour’s finding on this aspect. We do not consider the end sentence to be manifestly excessive.
[24] The appeal against sentence is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] Along with his brother John Michael Szucs.
[2] R v Szucs DC Papakura CRI-2009-092-14144, 28 February 2012.
[3] Parris v Attorney-General [2004] 1 NZLR 519 (CA) at [13].
[4] R v Fatu [2006] 2 NZLR 76 (CA).
[5] At [24].
[6] R v Kawerau [2009] NZCA 75.

[7] R v Woodhams HC Auckland CRI-2005-090-3399, 7 April 2006; R v Vowell HC Whangarei CRI-2006-088-3782, 4 May 2007; R v Teague HC Auckland CRI-2005-004-5436, 18 May 2007; R v Jones HC Whangarei CRI-2007-088-2320, 16 November 2007; R v Savelio HC Auckland CRI-2006-092-9147, 2 April 2008; R v Wright HC Whangarei CRI-2007-088-5600, 5 June 2008; R v Morris HC Auckland CRI-2007-004-7072, 5 September 2008; and R v Sykes HC Christchurch CRI-2008-009-7299, 8 October 2008.