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Court of Appeal of New Zealand |
Last Updated: 2 August 2017
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
21 June 2017 |
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Court: |
Clifford, Lang and Mander JJ |
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Counsel: |
D A Ewen for Appellant
R K Thomson for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
____________________________________________________________________
REASONS OF THE COURT
(Given by Lang J)
[1] Mr Hardy was found guilty by a jury in the District Court at Hamilton on a representative charge of manufacturing methamphetamine over a nine month period. The jury also found Mr Hardy guilty on charges of being in possession of equipment for the purpose of manufacturing methamphetamine and being in unlawful possession of ammunition.
[2] On 7 November 2016, Judge KBF Saunders sentenced Mr Hardy to 14 years and three months’ imprisonment on the charge of manufacturing methamphetamine.[1] She imposed concurrent sentences of imprisonment on the other two charges.[2] The Judge also made an order under s 86 of the Sentencing Act 2002 requiring Mr Hardy to serve 50 per cent of the sentence before being eligible to apply for parole.[3]
[3] Mr Hardy appeals against sentence on the basis that the Judge erred in making the factual findings that underpinned the sentence she imposed.
[4] The appeal was filed out of time. Mr Hardy provided a reasonable explanation for this. The Crown did not oppose. We grant an extension of time to appeal accordingly.
[5] Mr Hardy originally appealed against both conviction and sentence. During the hearing Mr Ewen confirmed on Mr Hardy’s behalf that the appeal against conviction was abandoned. We dismiss it accordingly.
Background
[6] The Crown case was that Mr Hardy was the primary figure in a significant methamphetamine manufacturing operation between late 2012 and 18 June 2013. The Crown relied on text messages sent and received by Mr Hardy during this period to demonstrate the nature and extent of this activity. In addition, the Crown relied on items that the police found when they searched several properties in the Hamilton area on 18 June 2013.
[7] On that date, the police searched a semi-industrial property situated in Collins Road on the outskirts of Hamilton. When they entered the property, they found Mr Hardy’s flatmate, Mr Brent Young, manufacturing methamphetamine in a concealed room on the upper floor of the property. The police also discovered more than 300 grams of packaged methamphetamine on the property. In addition, they found a handwritten list of equipment required for manufacturing methamphetamine. Items on the list included a clamp stand, funnels, a frying pan, a pressure cooker seal, and a beaker. Mr Hardy admitted writing this list, although he said he had done so at Mr Young’s direction. The police also located Mr Hardy’s palm print on a chest freezer in the property that was found to contain methamphetamine.
[8] A person by the name of Mr Jacob Poot lived in a flat adjoining the room in which the police found Mr Young manufacturing methamphetamine on 18 June 2013. The police found a box of equipment of the type used in the manufacture of methamphetamine in a closet in Mr Poot’s bedroom. Mr Hardy’s palm print and Mr Young’s fingerprint were found on items within that box. In Mr Poot’s flat the police also found another list of items needed for manufacturing methamphetamine that was consistent with being in Mr Hardy’s handwriting.
[9] When the police searched a storage shed on the Collins Road property they found more equipment associated with the manufacture of methamphetamine. Mr Hardy’s thumb print was located on the underside of a cooker in which pseudoephedrine had been extracted.
[10] On the same day, the police searched a house in Ngahinapouri where Mr Hardy and Mr Young were then living. The police found a hidden workshop in that address. Methamphetamine and pseudoephedrine residues were found on the ceiling of the workshop. The police also found a glass condenser in a loft area. This had been used to manufacture methamphetamine, and Mr Hardy’s fingerprints were located on it. The police also found pH strips in the boot of Mr Hardy’s vehicle.
[11] Messrs Poot, Young and Hardy were all charged with manufacturing methamphetamine and associated offending. Messrs Poot and Young pleaded guilty to the charges that they faced, and Mr Poot subsequently gave evidence against Mr Hardy at his trial.
[12] Mr Poot told the jury that Mr Hardy had approached him in late 2012 and asked to use the concealed room in the Collins Road property to manufacture methamphetamine. Mr Poot said he had then assisted Mr Hardy to manufacture methamphetamine at the address on several occasions, receiving cash and methamphetamine in return for his efforts. Mr Poot said that Mr Hardy would manufacture methamphetamine on a reasonably regular basis. Initially he manufactured methamphetamine once or twice a month, but over time this had increased to two or three manufactures per week. Mr Poot said he had not been at the Collins Road property immediately before or at the time of the police search on the weekend of 18 June 2013. He said he had allowed Mr Young to sleep at the address over that weekend, but he does not appear to have seen Mr Hardy at the property at that time.
[13] Mr Hardy gave evidence at trial. He disclaimed any knowledge of Mr Poot’s hidden room or the fact that methamphetamine was being manufactured in that room. He said he was addicted to methamphetamine, and Mr Young had supplied him with this. Mr Hardy provided the jury with innocent explanations for the fingerprints the police had found on the various pieces of equipment at the Collins Road and Ngahinapouri addresses, and in relation to his text message communications. He said that over the weekend before the police search he had been staying with his girlfriend, and had been carrying out work on a house owned by his sister’s parents-in-law.
The jury’s verdicts
[14] The jury found Mr Hardy guilty on Count 1 in the indictment, which was a representative charge of manufacturing methamphetamine in the Hamilton area between 1 August 2012 and 18 June 2013. The jury also found him guilty on a charge of being in possession of the equipment found in his workshop at Ngahinapouri for the purpose of manufacturing methamphetamine, and unlawfully being in possession of ammunition found at that workshop.
[15] The jury found Mr Hardy not guilty on Count 2, which was a charge of manufacturing methamphetamine at Collins Road on or about 18 June 2013. The jury also acquitted Mr Hardy on charges of producing ephedrine or pseudoephedrine on that date, and of possessing the equipment and precursor materials that the police found when they searched the Collins Road address on 18 June 2013. In addition, the jury found Mr Hardy not guilty on a further charge of being in possession of equipment for the purpose of manufacturing methamphetamine. This charge related to items of equipment the police had found hidden in a reserve behind Mr Hardy’s parents’ home on 18 June 2013.
[16] The jury was unable to reach verdicts on charges of being in possession of methamphetamine for supply on 18 June 2013, and supplying methamphetamine between 1 August 2012 and 18 June 2013. The possession for supply charge related to the packages of methamphetamine the police discovered when they searched the Collins Road address on 18 June 2013. The supply charge related to the supply of the methamphetamine that Mr Hardy and other members of the group had manufactured between 1 August 2012 and 18 June 2013. The combined effect of the latter verdict and the verdict on Count 1 suggests the jury were satisfied that Mr Hardy was involved in the manufacture of the methamphetamine during this period but could not reach agreement as to whether he was also involved in the onward supply of the finished product.
The sentence
[17] The Judge was required to make several factual findings in order to fix a starting point that reflected the overall culpability of Mr Hardy’s offending. Given that the lead charge of manufacturing methamphetamine was laid as a representative charge, the Judge first needed to determine the extent to which Mr Hardy had been involved in the manufacture of methamphetamine during the period covered by the indictment.
[18] The Judge relied on the evidence given by Mr Poot at the trial to determine this issue. Her conclusion, and the reasons for it, are encapsulated in the following passages of her sentencing remarks:[4]
[7] Mr Poot gave evidence for the Crown at trial. He, of course, had rented the commercial premises at Collins Road for some number of years and you and he had an association going back to the days when you were a race driver. I am satisfied, despite Mr Morgan’s urging to the contrary, that the jury did accept his evidence in finding you guilty of the manufacture of methamphetamine for that 10 month period prior to 18 June 2013. I am satisfied that the jury could have been under no illusion of the separate Crown cases in respect of what occurred prior to 18 June and what occurred on 18 June. What was found at Collins Road was entirely consistent with the jury’s verdict in respect of that charge. The significant amount of precursor substances and the equipment associated with the manufacture of methamphetamine, the clandestine lab of course which had been set up, the other equipment including the Parr bombs, electric fry pans, extractor fan, and so on. I consider the not guilty verdicts for the 18 June offending explicable on the basis that when the search warrant was executed the police found Mr Young only and clearly a cook had occurred with final product methamphetamine present. There was no evidence to establish beyond reasonable doubt that you were at Collins Road at all overnight on 17 or 18 June 2013 and therefore knew what Mr Young was doing.
[8] Accordingly, I do rely on Mr Poot’s evidence when I come to determine the scale of the manufacture of methamphetamine by you, Mr Hardy, for the period 1 August 2012 to 18 June 2013. The factual basis of my sentence today, Mr Hardy, is that you were a principal offender and you were not a party in what was on the evidence at trial and described by the experts as a relatively large-scale commercial, relatively sophisticated ongoing manufacture operation. I do not accept Mr Morgan’s submission that Mr Poot cannot be believed because the verdicts clearly show he was not a witness of truth. Mr Morgan, of course, urges me to sentence you on the basis that the other evidence, (he puts aside Mr Poot) establishes a much lesser degree of culpability and he acknowledges it would establish you manufactured methamphetamine on at least one occasion as a party to the principal offenders only, the principals he says were very clearly Mr Poot and Mr Young. The evidence that he says would take me to that conclusion only is the fingerprints that were found on three of the items, your admitted association with Mr Poot and Mr Young, your admitted presence at the premises, the note and your text messages.
[9] I am satisfied, as I have already said, that the jury’s verdicts are explicable for reasons other than the rejection of Mr Poot and I refer at this stage, Mr Hardy, to your text messages which certainly give some insight into your character, your aggression, your cockiness that you were at pains to paint a different picture when you gave your evidence. But the text messages in respect of the alleged sourcing of material by you (and of course I acknowledge the jury were unable to reach a verdict in respect of the supply so putting aside what the content may or may not have shown) did show you to be a man who was unafraid to argue with known gang members, for example, you were so confident in your own ability.
...
[13] As to the frequency, and this is important when I come to consider the quantity, Mr Poot said that the cooks increased over time, starting with two or three weeks and then increasing within each week. The Crown submits that during that period I can be satisfied at least 20 to 32 cooks took place, the Crown therefore submitting at least three kilograms, likely more of methamphetamine was manufactured by you.
...
[19] Mr Hardy, I sentence you on the basis you are a primary offender. It was your idea to use Mr Poot’s premises to manufacture methamphetamine and I am satisfied that you, in many ways, controlled the manufacture of methamphetamine from there certainly prior to 18 June 2013. You set up the hidden room and you were in a position of knowledge in respect of precursor substances and you were the cook, as Mr Poot says you were, of any and all stages of the process of manufacturing methamphetamine. You were well aware of the forensic worth of fingerprints, for example, on the glassware and the very telling text message where you ask Mr Poot, I think from memory it was in October 2012, to make sure he put the dishwasher on. Clearly the jury’s verdict rejected your explanation that that was an innocent text following a lunch that you had had at Mr Poot’s house.
[19] These conclusions led the Judge to determine that Mr Hardy’s offending fell within Band 4 identified in R v Fatu.[5] As a result, she adopted a starting point of 16 years’ imprisonment.[6] The Judge then applied an uplift of six months to reflect previous convictions for drug-related offending, and three months to reflect the fact that the present offending occurred whilst Mr Hardy was on bail.[7] She did not apply an uplift to reflect the other charges on which the jury had found Mr Hardy guilty.[8] The Judge then reduced the sentence by two years and six months’ imprisonment to reflect the fact that Mr Hardy had been subject to very restrictive EM bail conditions for a lengthy period before trial.[9]
The appeal
[20] Mr Ewen advances the appeal on Mr Hardy’s behalf on the basis that the Judge erred in principle in several respects when fixing the starting point of 16 years’ imprisonment. At the forefront of his submissions is an argument that the Judge erred in relying upon the evidence given by Mr Poot in fixing the starting point to be adopted in relation to Mr Hardy’s involvement in manufacturing methamphetamine.
The jury must have rejected Mr Poot’s evidence
[21] Mr Ewen accepts that it is now beyond question that a Judge is entitled to reach his or her own view of the facts for sentencing purposes provided it is not inconsistent with the jury’s verdicts.[10] In the present case, however, he submits that the jury’s verdicts demonstrate that they must have rejected the evidence given by Mr Poot that the Judge relied upon in assessing the role Mr Hardy played in the manufacture of methamphetamine.
[22] In particular, Mr Ewen relies on the fact that, based on Mr Poot’s evidence, the Crown had contended that Mr Hardy was responsible for setting up all aspects of the methamphetamine manufacturing operation at the Collins Road address. This included the provision of all the necessary equipment and materials to enable the operation to be undertaken. The Crown argued that Mr Hardy continued to be involved in that operation up to and including the point at which the police searched the premises on 18 June 2013. It argued that Mr Hardy was guilty as a party to that manufacture because of the steps that he had taken to establish and maintain the operation until that point.
[23] Mr Ewen submits that the jury must have rejected Mr Poot’s evidence on this point because Mr Hardy was acquitted on all the charges arising out of the police search of the Collins Road address on 18 June 2013. By way of example, Mr Ewen contends that the not guilty verdicts on the charges of being in possession of equipment and precursor materials on 18 June 2013 demonstrate that the jury rejected Mr Poot’s evidence that Mr Hardy was party to an ongoing manufacturing operation up until that date.
[24] We do not accept this submission. The jury was not required to wholly accept the Crown’s argument that Mr Hardy’s involvement in the Collins Road operation extended to the manufacture of methamphetamine by Mr Young that the police interrupted on 18 June 2013. Rather, we agree with the Judge’s assessment that the jury’s verdicts show it was not prepared to accept that Mr Hardy was involved in that particular manufacture of methamphetamine notwithstanding his earlier involvement in similar activity.
[25] Mr Hardy’s own evidence was that he was away from the Collins Road address for the weekend of 18 June 2013. This was confirmed by Mr Poot, whose evidence makes no mention of having seen Mr Hardy at the address on that weekend. He had only seen Mr Young, who was present at the address when the police arrived on 18 June. For these reasons we consider the jury’s verdicts to be explicable on a basis that is unrelated to the credibility of Mr Poot’s evidence.
[26] Furthermore, the Judge had carefully distinguished in her summing-up between the Crown case in respect of Count 1, the representative charge relating to the alleged manufacture of methamphetamine between 1 August 2012 and 18 June 2013, and that in respect of Count 2, which related specifically to the manufacture of methamphetamine on 18 June 2013. Dealing with this issue, the Judge gave the jury the following direction:
[66] So two points immediately arise. Because this is a representative charge the Crown must prove Mr Hardy was involved in manufacturing methamphetamine during this period on at least one occasion. Significantly it does not include the methamphetamine that was found on 18 June, which is 3001 and 3002 and that is the subject matter of Count 2. So this is everything before what the police found on 18 June.
The jury could not have been in any doubt that the two charges were entirely separate, and that a verdict on one charge did not lead automatically to the same verdict on the other.
[27] Nor do we attach any significance to the fact that the jury acquitted Mr Hardy on the charges of being in possession of equipment and precursor substances on 18 June 2013. The fact that Mr Hardy’s fingerprints were found on items of equipment located at Mr Poot’s address on 18 June 2013 did not necessarily mean he was still in possession of those items at the time the police arrived. The jury may well have concluded that at that particular point Mr Hardy did not have the necessary degree of control or intention to control the items in question so as to be in possession of them.
The need for caution in relation to Mr Poot’s evidence
[28] Next, Mr Ewen submits that the Judge should not have accepted Mr Poot’s evidence for sentencing purposes because she had given the jury a direction under s 122 of the Evidence Act 2006 in her summing up. Section 122(2)(c) requires a trial judge to direct the jury that they should exercise caution before accepting the evidence of a witness in any case where the witness might have a motive to give false evidence that is prejudicial to the defendant. In her summing-up, the Judge had given the jury the following direction:
[30] I will just give you a word of caution about Mr Poot’s evidence and that is because of the discount or reduction that he obtained in his sentence he may have his own agenda for giving the evidence that he has against Mr Hardy. The Crown of course do not deny that he received a discount, both for his guilty plea and for his co-operation and they say, quite correctly, that there is nothing unusual in that. In law a person will receive a discount for pleading guilty and if they give substantial co-operation to the police. It is common for a person to receive substantial discounts on what would be an otherwise appropriate sentence.
Mr Ewen argued that, if the Judge felt it necessary to direct the jury to exercise caution before accepting Mr Poot’s evidence, it followed that she needed to exercise caution herself before sentencing Mr Hardy on the basis of that evidence.
[29] In our view, the Judge was entitled to accept Mr Poot’s evidence for sentencing purposes notwithstanding the fact that she had given the jury this direction. The Judge was entitled to proceed on the basis that the verdicts demonstrated that, despite the caution she had given them, the jury had accepted Mr Poot’s evidence regarding the extent to which Mr Hardy was involved in the manufacture of methamphetamine during the period leading up to 18 June 2013. If the jury had accepted that evidence, the Judge was similarly entitled to rely upon it for sentencing purposes.
Conclusion
[30] It follows that we consider the Judge was entitled to fix a starting point for Mr Hardy’s offending on the basis that Mr Poot’s evidence reliably established the extent to which Mr Hardy was involved in the manufacture of methamphetamine during the period set out in the indictment. The appeal against sentence is accordingly dismissed.
Result
[31] The application for an extension of time to appeal is granted.
[32] The appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office,
Wellington for Respondent
[1] R v Hardy [2016] NZDC 21979 at [24].
[2] At [24].
[3] At [25].
[4] R v Hardy, above n 1.
[5] R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA) at [34]. This provides for a sentence of 10 years’ to life imprisonment when 500 g or more of methamphetamine has been sold or supplied.
[6] R v Hardy, above n 1, at [22].
[7] At [22].
[8] At [22].
[9] At [23].
[10] R v Connelly [2008] NZCA 550 at [14]; and B (CA58/2016) v R [2016] NZCA 432 at [76].
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URL: http://www.nzlii.org/nz/cases/NZCA/2017/327.html