Monk v R [2015] NZCA 113 (17 April 2015)

Last Updated: 23 April 2015

IN THE COURT OF APPEAL OF NEW ZEALAND
CA 121/2012 CA497/2012 [2015] NZCA 113
BETWEEN	DAMIAN BRIAN MONK Appellant
AND	THE QUEEN Respondent

Hearing:	11 March 2015
Court:	Stevens, Asher and Williams JJ
Counsel:	P J Kaye and S D Withers for Appellant H W Ebersohn for Respondent
Judgment:	17 April 2015 at 11.30 am

JUDGMENT OF THE COURT

A The appeal against conviction is dismissed.

2. The appeal against sentence is allowed. The end sentence of 17 years and one month’s imprisonment stands, but the minimum period of imprisonment of 10 years is quashed and replaced by a minimum period of imprisonment of eight and a half years.

____________________________________________________________________

REASONS OF THE COURT

(Given by Asher J)

Introduction

[1] On 16 June 2011 in the Auckland District Court Mr Monk pleaded guilty to 10 counts of manufacturing methamphetamine, 13 counts of importing pseudoephedrine, five counts of supplying methamphetamine, and one count of possession of methamphetamine for supply. On 20 February 2012, Judge Gibson sentenced him to 17 years and one month’s imprisonment on these charges, with a 10 year minimum period of imprisonment (MPI).^[1]
[2] The Judge described Mr Monk as the leader of a drug ring. Mr Monk, who was in charge of the manufacturing process, acted as a methamphetamine cook and supplier. The amounts involved were large: between June and December of 2009, some 700 grams were manufactured. The supply charges involved quantities of ounces and percentages of ounces.
[3] Mr Monk also imported large quantities of pseudoephedrine between December 2008 and October 2009.^[2] The pseudoephedrine was obtained from contacts in Thailand and Cambodia. He managed the sourcing of the pseudoephedrine through those contacts and arranged for monies to be sent to them to procure the drug. On average, Mr Monk was sending $55,000 a month to overseas destinations for the purchase of pseudoephedrine. A total of $273,400 was shown to have been sent to the overseas contacts. The Judge concluded that at least 1.4 kilograms of pseudoephedrine were imported, and that a further 1.5 kilograms were intercepted at Customs.^[3] He stated:^[4]

Overall, the amount of pseudoephedrine involved could have been converted to between 1.5 kilograms and 2.25 kilograms of methamphetamine with a possible retail value of between $1.5 million and $2,250,000.

[4] The scale of the undoubtedly commercial enterprise is reflected not only in the quantities, but also in the 13 occasions on which the offending occurred.

Appeal against conviction

[5] Mr Monk submits that his conviction is unsafe because of the manner in which his former counsel, Mr Barry Hart, conducted the defence. He has four specific criticisms:

• (a) Mr Hart failed to properly advance the point of Mr Monk’s mental impairment either as a fitness to stand trial or a fitness to plead issue.
• (b) Mr Hart was negligent in his attention to the detail of Mr Monk’s case.
• (c) Mr Hart provided advice that was plainly wrong, representing that Mr Monk’s conduct would attract a non-custodial sentence in the event Mr Monk pleaded guilty.
• (d) Mr Hart’s financial and professional circumstances significantly impaired his ability to conduct the case to the extent the trial became unfair and the conviction cannot stand.

[6] Mr Kaye submits that as a consequence of these failures Mr Monk was denied a fair trial and that there was a miscarriage of justice.

Mr Monk’s fitness to stand trial

[7] Mr Kaye’s submission raises Mr Monk’s general fitness to stand trial, and whether his counsel or indeed the Court should have engaged in the processes under Pt 2, subpart 1 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act). Mr Kaye observed that the appellant did not seek to avoid liability, but would “like to see his mental impairment properly observed in his trial and sentence. That is to say some criminality is accepted, simply not of the scope and scale alleged in the caption summary”.
[8] This is not a case where the question of whether Mr Monk was unfit to stand trial arises in a direct way, as the procedure to determine that issue under ss 8–15 of the Act was not invoked. The issue is rather, whether there was a need to trigger that procedure under s 7 and determine fitness to stand trial in accordance with the Act. The Act does not expressly state what is needed to trigger the Pt 2, subpart 1 procedure. Mr Kaye submitted the Court should have invoked the procedure in order that Mr Monk be assessed.
[9] The issue of what is needed to trigger the procedure was considered by this Court in R v McKay.^[5] Four possible tests were considered. The preferred test was that the procedure should be triggered whenever there was an application or request for the procedure. It was observed:^[6]

Rarely, a Judge might think that the application was sufficiently lacking in apparent merit that some further inquiry would be appropriate before engaging the statutory process. In such cases, the Judge must make such inquiries as seem appropriate in the circumstances, always bearing in mind that one should be cautious before refusing to respond to such a request.

[10] There can be rare cases where the procedure can be triggered even in the absence of an application by counsel, for instance where the defendant’s conduct during the court hearing was so bizarre as to raise a concern.^[7] The Court observed that sometimes the process might need to be initiated even over the wishes of the defendant if the Judge considered there was a real doubt as to the defendant’s fitness to stand trial.^[8]
[11] The standard to trigger the procedure was acknowledged to be low, and very dependent on the integrity and good judgment of counsel.^[9] It was easier to meet than the alternative test adopted in R v Codd, where it had been suggested the procedure would be triggered only where an unfitness application had been made and it was demonstrated the application had “a clear evidential foundation”.^[10]
[12] There is therefore no defined threshold to be crossed before the trigger is activated, and it is a low threshold. However, there must be some trigger such as an application by counsel, or rarely, the perception of a Judge that there are issues warranting investigation. The bare fact that a defendant had some mental impairment at the time of the plea is not, without more, sufficient. A judicial assessment whether an investigation is warranted and the invocation of the procedure is required. We must consider whether the material before the Court was sufficient to trigger the procedure.
[13] At the time of his offending Mr Monk was healthy. His offending began in December 2008 and continued to October 2009. On 10 January 2010 he was driving a car fleeing from the police at over 100 kilometres per hour, and crashed. He was admitted to hospital with significant orthopaedic injuries and extensive pulmonary contusions in both lungs. He did not appear to have a significant traumatic brain injury initially. However, he then suffered post-traumatic brain events, being a subarachnoid haemorrhage and a widespread diffuse fat embolism. These caused a significant brain injury. He showed features of post-head injury symptoms including diminished concentration and attention, slow information processing speed and memory difficulties, as well as ongoing fatigue. He was hospitalised for a period. On 9 April 2010 he was discharged from hospital to his father’s care.
[14] A registered clinical psychologist, Dr Cheryl Broneck, first assessed Mr Monk on 17 November 2010. She recorded diffuse and global cognitive deficits arising from his head injury. Dr Broneck assessed Mr Monk again in mid-2011 at the request of Mr Hart. Mr Monk was improving. We will return to this assessment. Mr Monk entered a plea of guilty on 16 June 2011, approximately a year and a half after the accident.
[15] In support of his appeal Mr Monk’s present counsel, Mr Kaye relied on a report prepared on 15 August 2013 by Dr Jeremy Skipworth, a consultant forensic psychiatrist. He examined Mr Monk. After considering his history, Dr Skipworth considered Mr Monk’s fitness to stand trial. He considered Mr Monk was able to enter a plea, having a clear understanding of his options. After detailed consideration and discussion of his mental capacity he concluded:

To summarise my opinion, on the basis of the information available to me, Mr Monk’s cognitive limitations may have rendered him unfit to enter a not guilty plea and stand trial, because there may have been significant communication problems with counsel conducting his defence. However, the nature and extent of those difficulties would depend on the defence strategy, how the trial unfolded, and whether communication with Mr Monk was even necessary. As such this is all somewhat speculative.

On the other hand, I believe Mr Monk was competent to enter a guilty plea because the cognitive challenge associated with that task appears to me to be more straightforward in this case as it required no further communication with counsel or the court. I believe Mr Monk understood the charges at a basic level. He understood and appreciated the consequences of being found guilty at trial. He was capable of being made aware of the consequences of pleading guilty, even if he did misunderstand the advice to him. If the advice was bad advice, that seems to me to be unrelated to the issue of fitness to stand trial. Mr Monk demonstrated an ability to reason around his different options, and consider their benefits and risks. And he could clearly communicate his choice, as he did to the court when he pleaded guilty.

[16] The issue of Mr Monk’s mental state was in fact considered by Judge Gibson in June 2011. Mr Hart, who appeared for Mr Monk, had on 14 June asked for a two day adjournment. He had referred the Judge to a letter of that day from Dr Broneck in which she had written about Mr Monk’s cognitive impairment, and stated:

Given Mr Monk’s continuing cognitive impairments, this raises a number of additional concerns, specifically his capability to participate in his own legal defence. I would recommend that this is further investigated by a forensic psychologist or psychiatrist.

[17] When the case was called again on the morning of 16 June 2011, a further letter was produced from Dr Broneck which was in identical terms to the preceding letter, but with the quoted passage deleted. Mr Hart sought leave to have Dr Broneck appear to give evidence on a voir dire so that it could be determined whether the procedures under the Act should be engaged. Dr Broneck duly appeared and was cross-examined.
[18] The Judge, in a minute issued on 30 June 2011, concluded with reference to the passage in Dr Broneck’s letter of 14 June 2011:

[8] Dr Broneck, in her evidence, said she did not understand the significance of the passage and confirmed Mr Monk would be able to make a meaningful contribution to his defence in the event the matter proceeded to trial, that there were strategies counsel could adopt to ensure any difficulties with short-term memory were overcome and that he would not have any difficulty, if he were to plead guilty, in recognising what it was that he was actually pleading guilty to. She said she had not anticipated the letter would be put before the Court and had thought it was only for counsel and was to assist him in developing strategies to overcome the difficulties she had identified but, in essence, those difficulties would not be an impediment to the trial process if it proceeded or to a plea of guilty.

[9] Consequently I was prepared to accept that Mr Monk was on arraignment able to enter the pleas he wished to enter and the matter proceeded on that basis as I was satisfied there was not an issue as to the accused’s fitness to stand trial as required to engage the process under the Act.

[19] Mr Hart has refused a Crown request that he file an affidavit, a point to which we will return later. However, we have court records and documents, and the affidavit of Mr John Anderson, who acted for Mr Monk prior to Mr Hart. We have considered the transcript of the hearing on 16 June 2011 and all the material before us. It is clear to us that Mr Hart called Dr Broneck out of caution, no doubt in part due to the content of the first version of her letter of 14 June 2011. But Mr Hart was not asking the Judge to invoke the procedures of the Act. He asked Dr Broneck:

17. Did you, as far as you were concerned were you purporting to indicate in that report that Mr Monk couldn’t stand trial and couldn’t instruct his lawyer and so on?
1. No, that wasn’t the intent of the report that I had, the updated report that I had written for you.

[20] Dr Broneck was not a New Zealand psychologist and had not understood the New Zealand procedures. She confirmed in her evidence that she had not raised any concerns about Mr Monk’s ability to instruct counsel or provide instructions. She repeated this again under questioning by the Judge.
[21] Our reading of Mr Hart’s questions of Dr Broneck shows they were designed to inform the Court of her views, not to put forward a particular position. We conclude that Mr Hart, while not applying for the procedure in Pt 2, subpart 2 of the Act to be followed, had placed that material of which he was aware about Mr Monk’s cognitive impairments before the Court out of an abundance of caution. He did not appear to consider there to be an issue as to Mr Monk’s ability to stand trial, and did not seek to trigger the procedure.
[22] Mr Anderson, who acted for Mr Monk until at least eight days before Mr Monk entered guilty pleas, himself considered whether Mr Monk was fit to plead and to stand trial in the period leading up to his guilty pleas on 16 June 2011. Initially after the accident he did not consider Mr Monk was fit to plead. However, Mr Monk gradually improved. While he did appear to have a lack of memory at times, he was able to follow discussions and respond. Mr Anderson thought the trial could be conducted with limited sitting times and frequent breaks to accommodate any difficulties on Mr Monk’s part. He felt Mr Monk understood his options and his advice. It is recognised practical steps like this can assuage the effects of mental disability on fitness to stand trial.^[11]
[23] We conclude that two experienced lawyers formed the view there was no material before them which warranted the invocation of the procedure under Pt 2 of the Act. This was consistent with Dr Broneck’s expert views. The trigger was not activated. Dr Skipworth’s later affidavit is equivocal, and does not persuade us that the procedure should have been triggered.
[24] It is also apparent that Judge Gibson, having heard the evidence presented at the voir dire and having considered Dr Broneck’s opinion, did not consider the procedure should be triggered.
[25] We have noted Mr Monk’s affidavit and the affidavit of his father, Mr Brian Donald Monk (“Mr Monk senior”), in which each has emphasised Mr Monk’s mental challenges. However, there is nothing in those affidavits, which are not expert affidavits and are filed by persons who have an interest in obtaining a retrial, to show that the assessment of the psychologist, counsel and the Judge at the time of the trial was wrong.
[26] Therefore this ground of appeal cannot succeed.

Alleged negligence by Mr Hart

[27] We consider here both grounds (b) and (c) of Mr Monk’s appeal, set out at [5] relating to Mr Hart’s conduct. We have already considered his conduct in relation to the issue of Mr Monk’s fitness to stand trial and his mental impairment. We have not found any basis for criticism.
[28] There was a considerable number of more general criticisms made of Mr Hart. Mr Monk senior complained about Mr Hart’s level of charging, his refusal to provide copies of Mr Monk’s file, and the failure on Mr Hart’s part to investigate or explore the strength of the case against Mr Monk. He complained that Mr Hart had never properly familiarised himself with Mr Monk’s file, and that Mr Hart represented that Mr Monk would receive a non-custodial sentence.
[29] We are informed by the Crown that Mr Hart has not responded to the Crown request that he file an affidavit. He has been struck off the register of barristers and solicitors of New Zealand. However, he is a former Officer of the Court and if indeed he has refused to file an affidavit relating to his performance as counsel, notwithstanding a request to do so, that is a matter of surprise and concern. Fortunately we have the detailed affidavit of Mr Anderson and the Court record of the steps in which Mr Hart was involved.
[30] There was considerable argument about when in fact Mr Hart was instructed. It may well be that he had been instructed in January or February 2011 as Mr Monk senior claims, but remained in the background. We are satisfied that Mr Anderson remained Mr Monk’s primary counsel right through to 8 June 2011, eight days before the plea of guilty. It was he who appeared for Mr Monk when the case was called. On two occasions Mr Anderson records that Mr Monk brought Mr Hart with him to a meeting which was amicable and professional, with Mr Hart asking some questions.
[31] Mr Anderson had commenced endeavouring to negotiate with the Crown an agreement whereby Mr Monk would plead guilty to some of the charges. We are satisfied that Mr Anderson gave Mr Monk professional and proper advice up to the end of his involvement as counsel on 8 June 2011.
[32] The transcript of evidence of the hearing before Judge Gibson on 16 June 2011 shows Mr Hart to have carried out his duties in an appropriate way, and to have been fully aware of the issues faced by his client. The Judge’s sentencing notes show the receipt of full and appropriate submissions from Mr Hart. The Judge recorded Mr Hart urging on him a starting point of 13 years, within the band four range set out in R v Fatu and also submissions on the appropriate discount for a guilty plea.^[12] Mr Hart also made submissions asking the Judge to take into account that Mr Monk would have used a considerable amount of the methamphetamine personally. Mr Hart asked for a discount for Mr Monk’s physical disabilities suffered from his car accident. He also asked for an additional and discrete discount for remorse. We note also that Mr Anderson deposed he advised Mr Monk as to the prospect of prison and on the likely length of imprisonment.
[33] We treat Mr Monk’s recollections in his affidavit with caution, given his selfprofessed memory problems. We also treat Mr Monk senior’s evidence with some caution. He gave evidence before us and, perhaps understandably, was very partisan in support of his son. We feel unable to place any weight on his perceptions as to his son’s position, and note also that he has no expertise in the area of mental disability.
[34] We are left in no doubt as to the adequacy of Mr Hart’s performance as Mr Monk’s counsel. He properly raised the issue of mental impairment and considered the procedures under the Act. Moreover, the submissions that he made in mitigation for Mr Monk appear from the sentencing notes to have been forceful and appropriate. Importantly, Mr Monk and his supporters must have been in court and heard Mr Hart’s submissions where he was asking for a 13 year starting point. They made no complaint at the time. This is entirely inconsistent with the suggestion that Mr Hart had indicated to Mr Monk that a guilty plea would result in a non-custodial sentence.
[35] We add that it made perfect sense for Mr Monk to plead guilty. The Crown case against him was based on extensive text message evidence and appeared to be strong. The discount of 10 per cent obtained for the very late guilty plea was in the circumstances a significant and meaningful reduction.
[36] We add also that the complaints made by the Monks as to Mr Hart’s alleged over charging are not relevant to the issues that arise in this appeal.

Mr Hart’s alleged inability to conduct the trial

[37] Mr Kaye submitted Mr Hart would have been distracted by his financial and professional circumstances at the time of the guilty plea and sentencing, which would have impaired his ability to properly advise and assist Mr Monk.
[38] For the reasons we have already set out, we see no error in any step taken by Mr Hart, or anything to indicate his professional performance was impaired. In R v Leith and R v Harding, this Court upheld appeals where the circumstances relating to the performance of counsel at a hearing was such that there was a real concern the defendant may not have been adequately represented, and consequently justice was not manifestly seen to be done. Certainly if it is shown counsel was suffering from a severe disability at the time of the trial a question of that order can arise. However, as the Crown points out, the charges against Mr Hart at the relevant time did not relate to his health, or his ability, capability or competency. The offending is summarised in Hart v Auckland Standards Committee No 1 of New Zealand Law Society.^[13] There are here none of the disquieting features shown in the Leith and Harding decisions.^[14]
[39] The ultimate question is whether justice has miscarried. We do not have to go further in this case than to say there is nothing arising from Mr Hart’s circumstances or conduct to support a view that there was a miscarriage of justice in handling Mr Monk’s case.

Sentence appeal

[40] Mr Kaye argues the end sentence and MPI were manifestly excessive.

End sentence

[41] In sentencing Mr Monk, the Judge described him as the leader of the drug ring, with assistance from three other persons who were sentenced at the same time. ^[15] The Judge noted Mr Monk:^[16]

... organised the importations, he liaised and dealt with his agents overseas, he arranged for money to be sent to them, or sent it himself, and he also acted as the cook and, clearly, he was the principal player in terms of the way the ring operated.

[42] The Judge considered the guideline judgment of R v Fatu and decided Mr Monk’s offending fell within the band four range, for which the appropriate sentence is from 13 years to life imprisonment.^[17] In reaching a starting point, he appeared to be taking into account both the importing of pseudoephedrine and the manufacturing and supply of methamphetamine counts in the round. He noted Mr Hart’s submission that a starting point of 13 years’ imprisonment was appropriate, and decided, because of Mr Monk’s central position, the amount involved and the yield of methamphetamine, a starting point considerably higher than 13 years’ imprisonment was required. He fixed 18 years’ imprisonment.^[18]
[43] Taking into account the fact Mr Monk had offended whilst on bail, and had previous convictions including for drug offences, the Judge imposed a one year uplift, leaving a sentence of 19 years’ imprisonment.^[19] The Judge then applied the 10 per cent discount for a very late guilty plea in the face of a strong Crown case.^[20] He declined to give any discount in respect of Mr Monk’s mental impairment, his remorse, or in respect of the fact that some of the methamphetamine was likely for Mr Monk’s personal use.^[21]
[44] There is no doubt band four of Fatu applied, warranting a starting point of 13 years’ to life imprisonment: the correct band range was the most serious one available relating to the manufacture of methamphetamine. The methamphetamine manufacturing charges alone justified a sentence of 13 years or more. The Judge in assessing the starting point had also to take into account the importation of 1.5–2.25 kilograms of pseudoephedrine. It appears he increased the starting point by up to five years for this offending.^[22] Given the large amounts of pseudoephedrine imported and the high potential value of the methamphetamine that could be manufactured from it, a figure much higher than five years would have been appropriate, all the more so as there were the five supply charges and the possession for supply charge. However, the Judge was undoubtedly influenced by totality considerations.
[45] On an overview, Mr Monk was at the head of a very significant pseudoephedrine importing and methamphetamine manufacturing and supply drug ring, capable of producing very large profits. The operation was commercial on a substantial scale. The starting point of 18 years’ imprisonment was appropriate.
[46] The offending while on bail was over a short period but it was serious. Mr Monk’s criminal record included drug offending and three convictions for breach of community work, none of which had warranted a custodial sentence. We consider therefore that the one year uplift for previous convictions and offending on bail was stern, but when we look at the overall starting point of 19 years’ imprisonment fixed by the Judge, including the uplift for aggravating factors, we do not consider it to be out of range. We are particularly influenced by Mr Monk’s role as leader of the drug importing and manufacturing ring, and its significant scale.
[47] It was open to the Judge to refuse any discount for Mr Monk’s personal circumstances, including his brain injury. The personal circumstances of an offender must be subordinated to the needs of deterrence when an offender is involved in large scale commercial drug dealing.^[23]

Minimum period of imprisonment

[48] The Judge made an error in calculating the MPI.^[24] He assumed he was in a position to impose a MPI of two-thirds of the end sentence, being 11 years and four months’ imprisonment, and adjusted downwards from that starting point. In fact the maximum MPI available was 10 years’ imprisonment, as stipulated by s 86(4) of the Sentencing Act 2002. This leaves us in a position where we need to do our own calculation of the correct MPI.
[49] There is no doubt a MPI was appropriate, given the seriousness of the offending. However we bear in mind the fact Mr Monk has suffered severe physical and mental injuries in his car accident. We have seen him give evidence, and he appears to have suffered some ongoing damage as a consequence of the accident that may impose an additional hardship on him when he serves his sentence.
[50] In all the circumstances we consider a MPI of approximately 50 per cent is appropriate, and we therefore allow the appeal against sentence, quash the sentence of a MPI of 10 years and replace it with one of eight and a half years.

Result

[51] The appeal against conviction is dismissed.
[52] The appeal against sentence is allowed. The end sentence of 17 years and one month imprisonment stands, but the MPI of 10 years is quashed and replaced by a MPI of eight and a half years.

Solicitors:
Crown Law Office, Wellington for Respondent.

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^[1] R v Monk DC Auckland CRI-2009-004-24447, 20 February 2012.

^[2] At [6].

^[3] At [8]–[9].

^[4] At [9].

^[5] R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 at [33]–[40].

^[6] At [34].

^[7] At [40].

^[8] At [40].

^[9] At [39].

^[10] R v Codd [2006] 3 NZLR 562 (HC) at [23].

^[11] See R v JPA [2014] NZHC 1534 at [52].

^[12] R v Monk, above n 1, at [24], citing Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA).

^[13] Hart v Auckland Standards Committee No 1 of New Zealand Law Society [2013] NZCA 673 at [3].

^[14] For example, in Leith, trial counsel made a number of significant errors and was alleged to be struggling with alcoholism. In Harding, trial counsel was suffering from clinical depression with episodes of sleeplessness, negative thoughts about the self, episodes of anxiety and panic, and difficulty getting out of bed and finding motivation to perform.

^[15] R v Monk, above n 1, at [6].

^[16] At [16].

^[17] R v Fatu, above n Error! Bookmark not defined., at [43].

^[18] R v Monk, above n 1, at [24].

^[19] At [25].

^[20] At [28].

^[21] At [28]–[29].

^[22] At [24].

^[23] Clunie v R [2013] NZCA 110 at [23], citing R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612 at [14].

^[24] R v Monk, above n 1, at [32].