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Court of Appeal of New Zealand |
Last Updated: 11 January 2013
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CA443/2010
[2012] NZCA 591 |
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BETWEEN DAVID GEORGE SAGGERS
Appellant |
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AND THE QUEEN
Respondent |
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Hearing: 19 November 2012
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Court: Wild, Chisholm and Courtney JJ
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Counsel: R M Mansfield for Appellant
M D Downs for Respondent |
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Judgment: 18 December 2012 at 10 am
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JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Wild J)
[1] Mr Saggers appeals against a sentence of 12 years’ imprisonment with a minimum non-parole period of six years imposed by White J in the High Court at Auckland on 24 March 2010.[1]
[2] The regrettable circumstances we will outline leave us no practical alternative but to allow this appeal, quash the sentence under appeal, and remit the matter to the High Court, for resentencing by a Judge who has determined the facts that are in dispute.
[3] We wish to record at the outset that this situation in no way reflects adversely on White J. Indeed, he took meticulous steps to try and avoid the situation that has arisen.
[4] Mr Saggers faced 13 charges mainly relating to the Class A controlled drug methamphetamine and unlawful possession of firearms and ammunition. The most serious of those charges were the first two:
|
Section 6(1)(c)
Misuse of Drugs Act 1975 |
1 THE CROWN SOLICITOR AT AUCKLAND charges that DAVID GEORGE
SAGGERS between 31 May 2003 and 5 December 2007, at Auckland, supplied the
Class A drug methamphetamine to another.
REPRESENTATIVE
|
|
Section 6(1)(b)
Misuse of Drugs Act 1975 |
2 THE CROWN SOLICITOR AT AUCKLAND charges that DAVID GEORGE
SAGGERS between 31 May 2003 and 5 December 2007, at Auckland, manufactured
the Class A drug methamphetamine.
REPRESENTATIVE
|
[5] Mr Leary acted for Mr Saggers in respect of these charges. When Mr Saggers was arraigned at the start of his trial on 15 February 2010, he pleaded guilty to all the charges except counts 1 to 4, to which he entered pleas of not guilty. The trial proceeded on those four counts.
[6] The first Crown witness was a Ms Bracey, who had married Mr Saggers in 1998, but separated from him in September 2003. In broad summary, Ms Bracey gave evidence that Mr Saggers had become involved with methamphetamine in about 2001–2002, and had begun manufacturing methamphetamine in the garage at the couple’s home in Riverhead. She described Mr Saggers constantly having “a hive of people around him” if he was home. She deposed to seeing big polythene bags of pink and white ContacNT capsules[2] in the garage, to Mr Saggers evaporating clear liquid in Pyrex dishes in the garage, to Mr Saggers handling large bundles of cash, and to finding a large sum of cash hidden in the garage. Ms Bracey also gave evidence that Mr Saggers’ business, HD Drainage, was an invoice and not a cash business, except for the “odd cash job”, which was never large.
[7] Although Mr Leary cross-examined Ms Bracey at some length, he did not seek to challenge the gist of the evidence we have outlined.
[8] On the second day of the trial, 17 February, the Crown called Ms Young. She was the seventh witness for the Crown. Ms Young told the Court that she had been in a relationship with Mr Saggers from about August 2003 until January 2004. Her evidence was to much the same effect as that of Ms Bracey summarised in [6] above. Ms Young was still giving her evidence-in-chief when the Court adjourned at the end of Wednesday 17 February.
[9] When the Court resumed on Thursday 18 February Mr Leary asked that Mr Saggers be re-arraigned. He then pleaded guilty to counts 1 and 2 and was convicted on those counts, and remanded in custody. At the Crown’s request Mr Saggers was discharged on counts 3 and 4. The trial concluded. Sentencing was scheduled for 24 March 2010.
[10] The day before sentencing, White J issued a minute.[3] He recorded that he had received the Crown’s sentencing submissions dated 14 March, and the defence sentencing memorandum dated 19 March. The Judge noted that the defence submissions took issue:[4]
... with the Crown’s “aggravating features” relating to the scale of operations and period of offending, the presence of ammunition and weapons and harm to the visiting child.
[11] Pursuant to s 24(2) of the Sentencing Act 2002, the Judge then gave the parties this indication:
[6] I indicate that I would give considerable weight to the following disputed facts which would be of particular significance to the sentence in this case in putting the case well within Band 3 in R v Fatu [2006] 2 NZLR 72 (CA) —
[7] Subject to any further evidence which the defence may wish to adduce, I would propose to take into account in addition to the evidence adduced at the trial, especially the unchallenged evidence of [Ms Young], the further statements provided by the Crown from Jason Otis and Gregory Holmes.
[8] The parties should now advise the Court whether they wish to rely on the disputed facts and whether they wish to adduce further evidence.
[12] The remarks White J made to Mr Saggers when sentencing him on 24 March 2010 included the following:
Disputed facts
[10] You took issue with the Crown’s submissions on “aggravating features” relating to the scale of your operation and the period of offending, the presence of ammunition and weapons.
[11] I indicated in a minute issued yesterday to counsel that I would give considerable weight to the disputed facts which were of particular significance in putting the case within band 3 in R v Fatu [2006] 2 NZLR 72 (CA) the leading Court of Appeal case for sentencing purposes and that I would take into account the evidence adduced at the trial, especially the unchallenged evidence of your former partner, and in addition the further statements provided by the Crown from Mr Otis and Detective Sergeant Holmes. I gave you the opportunity to adduce further evidence and to cross-examine Mr Otis and Detective Sergeant Holmes.
[12] Your counsel has advised me today that he does not seek to adduce further evidence or ask for Mr Otis and Detective Sergeant Holmes to be called for cross-examination on their statements. This means that I may now accept this evidence which indicated in my minute established the disputed facts for the purpose of band 3.
[13] Your former wife and partner gave evidence during your trial before you pleaded guilty to the manufacturing and supplying charges. Your former wife was cross-examined on her evidence, but the evidence of your former partner was unchallenged. Indeed you pleaded guilty immediately after her evidence in chief had been completed. On the basis of their evidence, which was credible and compelling as to what they saw you doing, I accept it has been established beyond reasonable doubt that you were manufacturing and supplying methamphetamine on a large scale commercial basis between 31 May 2003 and January 2004.
[14] On the basis of the items discovered by the police as a result of their searches of your home and commercial premises, including the ContacNT, the equipment, the precursors and the $253,720, together with the unchallenged further evidence of the ESR Forensic Scientist, Mr Otis, and the Police expert witness, Detective Sergeant Holmes, I accept that it has been established beyond reasonable doubt that your large scale commercial manufacturing and supply operation continued from 31 May 2003 to 5 December 2007, a period of four years and seven months. You declined the opportunity to challenge the evidence which established the disputed facts.
[15] The factual conclusions that I have reached are supported by your pleas of guilty to the manufacturing and supply charges both of which refer to the period of 31 May 2003 to 5 December 2007. I am bound to accept all the facts essential to your pleas of guilt: Sentencing Act 2002, s 24(1)(b).
[13] Under the heading “Defence Submissions”, the Judge also made these remarks to Mr Saggers:
[33] You dispute the Crown’s assertions that the amount of methamphetamine manufactured and the size of the operation meant that it was commercially significant. You say that the evidence from the Crown’s witnesses covered only the period up to January 2004. You say that your former wife’s evidence has inconsistencies, and a possible financial motive reduced her credibility. You note that your former partner was not cross-examined and at the time she was heavily addicted to methamphetamine.
[34] On the aggravating factors the Crown put forward, as to the scale of the operation and the period of offending, your counsel acknowledged that there was not a complete absence of commerciality, but disputed the length and level of commerciality that the Crown relied on.
[14] In evidence before us Mr Leary said that he had spoken to Mr Saggers in the Court cells following the sentencing. He produced a file memo he had dictated the following day, 25 March.[5] The memo includes the following:
This was a wide ranging discussion of some concern.
Mr Saggers was disgruntled having just received a 14 year sentence reduced by 15% to 12 years with a non parole period of 50% - i.e. 6 years of which he will serve 5 having been on remand for over 1 year.
He then proceeded with a litany of issues which included:
...
...
7. He was clearly disturbed ...
8. I took the precaution of taking Mr Scott Clark with me ...
[15] Subsequently – we were not given the precise date – Mr Saggers terminated his instructions to Mr Leary. Mr Mansfield was then instructed.
[16] Assisted by Mr Mansfield, on 15 July 2010, Mr Saggers filed a notice of appeal against sentence. That notice stated as the first ground of appeal:
- My counsel failed to cross examine relevant witnesses in accordance with my instructions at trial; and/or failed to pursue a Disputed Facts Hearing; and/or failed to call evidence at my Sentencing Hearing.
[17] The notice sought an extension of time for the appeal. Mr Saggers gave as his reason for the late filing of the appeal:
I was unhappy with my previous representation and accordingly sought different counsel. That took time and delayed the process of Appealing my Sentence.
[18] In his minute of 30 August 2010, Hammond J directed that the application for an extension of time be dealt with at the hearing. Given Mr Saggers’ explanation for the delay in appealing, and the lack of opposition by the Crown to an extension, we extend time for the filing of the appeal.
[19] Mr Saggers supported his appeal with an affidavit sworn on 21 July 2011. In this affidavit he contended that his only involvement in manufacturing methamphetamine was to evaporate methamphetamine which had been given to him by Mr Sowman and Mr Kareus between 2003 and January 2004. He said that he had instructed his trial counsel, Mr Leary, to challenge the level of his offending as alleged by the Crown. Mr Leary had advised him that he would make that challenge and that the level of Mr Saggers’ methamphetamine activity would be resolved at sentencing. Mr Saggers stated that Mr Leary had not further advised him before he was sentenced, and in particular had not advised him of the options of a disputed facts hearing or resolving the level of his offending by agreement with the Crown. Mr Saggers said that Mr Leary had not followed his instructions, with the result that he had been sentenced on an incorrect basis and received a sentence which was manifestly excessive.
[20] Under cross-examination, Mr Saggers remained adamant that Mr Leary had not advised him that he could have a disputed facts hearing. It had never been mentioned. He was also adamant that Mr Leary had not advised him that disputing facts could result in a worse outcome for Mr Saggers in terms of sentence. He said that Mr Leary had not advised him that pressing on with a disputed facts hearing may mean that he would not get a discount for pleading guilty, cooperation and so on. Mr Saggers said that he had never agreed with Mr Leary not to call any evidence, and to deal with disputed facts only by way of submissions to the Judge.
[21] Following a waiver of privilege, the Crown obtained an affidavit from Mr Leary, who deposed:
3.11 The appellant well understood that he was entitled to have a disputed fact hearing. I explained to him that neither his evidence nor those who were to support him had sufficient cogency to persuade any Judge. ...
...
3.13 The appellant accepted that for the purposes of sentencing there would be no evidence and that we would rely on my submissions.
[22] However, under cross-examination, Mr Leary accepted that he had not advised Mr Saggers “in so many words” that he could proceed to a disputed fact hearing regarding the extent of his offending. Mr Leary said that he had advised Mr Saggers a long time before he was sentenced “that the only way [he] could dispute the commerciality was by way of witness submission and not by viva voce evidence.” Mr Leary was firm in his view that “the quality of [the evidence Mr Saggers could give or call] didn’t stack up”.
[23] We accept Mr Saggers’ evidence that, despite pleading guilty to all the charges save the two on which he was discharged, he wanted to dispute the facts of the offending he had admitted. Mr Leary accepted that, as was demonstrated by the sentencing submissions he made for Mr Saggers to White J.
[24] In that situation, proper discharge of his professional duties required Mr Leary to advise Mr Saggers of his ability to dispute the facts by giving and calling evidence at a disputed facts hearing under s 24(2)(b) of the Sentencing Act.
[25] We find that Mr Leary did not at any stage do that. There may well have been sound reasons why Mr Leary would want to advise Mr Saggers, in the strongest possible terms, not to require a disputed facts hearing under s 24. But that does not relieve Mr Leary of his duty to advise Mr Saggers of his right to request a disputed facts hearing. If Mr Saggers was not aware of that right, he could not make an informed decision not to exercise it.
[26] In some other cases this Court has itself conducted a disputed facts hearing. That course is not practicable here. That is because the sentencing process needs to be undertaken afresh. Mr Saggers intends giving, and possibly calling, evidence that is almost directly contrary to the evidence that was given at the trial before White J by Ms Bracey, and later by Ms Young. We do not know what further evidence the Crown may wish to call in response to that adduced by Mr Saggers. That situation can only adequately be dealt with in the High Court. The transcript of the evidence taken at the trial, in particular the evidence of Ms Bracey and Ms Young, will be available to the resentencing Judge. The fact that that evidence was not really challenged by Mr Leary at trial (and in the case of Ms Young was not challenged at all) is a difficulty for Mr Saggers that will need to be confronted by counsel representing him at the resentencing.
[27] Counsel for the Crown and Mr Mansfield both referred us to this Court’s decisions in R v Chicoine[6] and R v Gatenby.[7] In a situation not dissimilar to this, Gatenby followed Chicoine in holding that this Court had no power to quash a sentence and remit the case back to the sentencing court (in that case the District Court) for a disputed facts hearing to be followed by a resentencing of the prisoner.[8]
[28] However, since Chicoine and Gatenby were decided in 2005, s 385 of the Crimes Act 1961, which deals with determination of appeals in ordinary cases, has been amended by adding provisions enabling this Court to remit the case back to the sentencing court. The relevant provisions are s 385(2A) and (3), the latter of which came into force on 26 June 2008:
(2A) This subsection applies to—
(a) an appeal to ... the Court of Appeal against sentence:
...
(3) On any appeal to which subsection (2A) applies, the Court of Appeal ... must—
...
(b) if it thinks that a different sentence should have been passed,–
(i) quash the sentence and replace it with another sentence warranted in law (whether more or less severe) that the Court thinks ought to have been passed; or
(ii) vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; or
(c) remit the case to the Court that imposed the sentence with a direction that such Court take an action of the kind described in paragraph (b)(i) or (ii) in accordance with any directions given by the Court of Appeal ...
[29] This Court referred to Gatenby, and then to the new s 385(3), in Paul v R,[9] but decided against utilising the new power to remit back. The Court appears to have used s 385(3) in Sullivan v R,[10] though without expressly referring to s 385. And it used s 385(3) again in R v Mackey.[11]
[30] It is for these reasons that we said at the outset of this judgment that what has happened leaves us with no practical alternative but to remit the matter to the High Court with a direction to determine the disputed facts relevant to sentence and then to resentence the appellant.
[31] At the hearing of this appeal we raised with counsel whether White J would need to resentence Mr Saggers. Although White J is now a Judge of this Court, he could do that. Section 57(4) of the Judicature Act 1908 provides that every judge of the Court of Appeal may from time to time sit as or exercise any of the powers of a judge of the High Court.
[32] Upon reflection, though not without some hesitation, we think that any Judge of the High Court could satisfactorily resentence Mr Saggers. The concern that White J heard the evidence of the critical witnesses Ms Bracey and Ms Young is met by the fact that there is a transcript of their – in material respects – unchallenged evidence.
[33] We record that we asked Mr Mansfield to ensure that Mr Saggers was aware that a disputed facts hearing and resentencing in the High Court may result in the imposition of a higher sentence than the one under appeal. At least three circumstances may combine to produce that result.
[34] First, in sentencing Mr Saggers, White J allowed him a 15 per cent discount (which the Judge rounded down to two years) to reflect “the guilty plea, including the element of remorse, and the elements of delay and co-operation accepted by the Crown”.[12] We agree with Mr Downs’ submission that the content of Mr Saggers’ evidence in support of this appeal “is a hair’s breadth from being a challenge to the convictions” for manufacturing and supplying methamphetamine. The high point of this evidence is the following two paragraphs in Mr Saggers’ affidavit:
4.22 I have never taken part in the manufacturing of methamphetamine, apart from evaporating small amounts of the drug in liquid form when it was given to me by Mr Sowman or Mr Kareus. However I acknowledge that I have seen Mr Sowman extract methamphetamine at his house and once at my house in October 2003.
4.23 I saw Mr Kareus evaporate methamphetamine (which he had prepared somewhere else) in my garage three times in the second half of 2003. I did not stop him from doing this because he gave me some methamphetamine (for my personal use). However, I did not have any involvement with either the manufacturing or the sale of any manufactured drug. From what I saw, the amounts Mr Kareus evaporated were not substantial.
If Mr Saggers reiterates that evidence in a disputed facts hearing, then White J may well review any allowance for guilty pleas including remorse and for co-operation with the police.
[35] Secondly, Mr Leary deliberately did not challenge the gist of the evidence Ms Bracey gave about the extent and nature of Mr Saggers’ methamphetamine manufacturing and supply, the latter manifest in the large amounts of cash Ms Bracey saw Mr Saggers handling, and the substantial amount of cash which she said he had hidden. Mr Saggers pleaded guilty before Ms Young’s evidence-in-chief was completed, so there was no cross-examination of Ms Young. Given that neither of those witnesses was challenged as to the manufacturing and supply aspects of their evidence, there will be a difficulty in Mr Saggers inviting the Judge to prefer his evidence over that of Ms Bracey and Ms Young.
[36] Thirdly, further evidence adverse to Mr Saggers may emerge at the disputed facts hearing. For example, under cross-examination before us, Mr Leary pointed to the availability to the Crown of evidence that Mr Saggers had outlaid, in three different ways, a further $210,000 approximately in cash during the period covered by the manufacturing and supply charges. Mr Leary told us that he could not see that Mr Saggers could have earned that money by any lawful means. That was one of the reasons why Mr Leary advised Mr Saggers to plead guilty to the manufacturing and supply charges.
[37] Mr Mansfield undertook to convey these matters to Mr Saggers and to confirm to us that, notwithstanding them, his instructions from Mr Mansfield remained to pursue this appeal. Mr Mansfield did that by memorandum dated 27 November 2012. To that memorandum Mr Mansfield annexed a letter casting doubt on the accuracy of one component of the $210,000 figure set out in [36] above. That drew a memorandum dated 28 November from Mr Downs objecting to the introduction of that letter, and pointing out that it “sits awkwardly with the appellant’s stance before this Court, which was that disputed facts should be resolved by the High Court”. Somewhat obviously, the impugned letter has had no bearing on this judgment; Mr Downs is correct in saying that the determination of disputed facts relevant to sentence will be for the High Court.
[38] Accordingly, we allow this appeal. We quash the sentences under appeal. We remit this matter to the High Court with the direction that it determine the disputed facts relevant to sentence, and then resentence Mr Saggers.
[39] Any consideration of bail pending resentencing is a matter for the High Court, but seems inappropriate.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v
Saggers HC Auckland CRI-2008-090-4576, 24 March 2010 [sentencing
judgment].
[2] These
capsules contain the methamphetamine precursor substance
pseudoephedrine.
[3]
R v Saggers HC Auckland CRI-2008-090-4576, 23 March 2010 (Minute No
4).
[4] At
[3].
[5] Exhibit H
to Mr Leary’s affidavit sworn on 31 January
2012.
[6] R v
Chicoine CA220/04, 21 March
2005.
[7] R v
Gatenby CA511/04, 28 April
2005.
[8] At
[16]–[17].
[9]
Paul v R [2011] NZCA 589 at
[30]–[32].
[10]
Sullivan v R [2011] NZCA
366.
[11] R v
Mackey [2008] NZCA
444.
[12]
Sentencing judgment, above n1, at [67].
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