Johnson v R [2022] NZCA 175 (11 May 2022)

Last Updated: 17 May 2022

IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA

CA529/2021 [2022] NZCA 175

	BETWEEN	PAUL MALCOLM JOHNSON Appellant
	AND	THE QUEEN Respondent

Hearing:	30 March 2022
Court:	Gilbert, Woolford and Dunningham JJ
Counsel:	W D McKean for Appellant M Davie for Respondent
Judgment:	11 May 2022 at 9 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by Dunningham J)

• [1] The appellant, Mr Johnson, was found guilty, by a jury, of conspiring with two others to smuggle methamphetamine into prison to supply to a fellow inmate.^[1]
• [2] Mr Johnson appeals his conviction, saying the verdict was unreasonable. If the conviction stands, he appeals his sentence on the grounds the Judge was wrong to sentence on the basis the conspiracy involved the whole 13.92 grams found on one of the co-defendants.^[2]

Background facts

• [3] In 2019, Mr Johnson was an inmate at Northland Regional Corrections facility. He had a girlfriend who would visit him in prison, Ms Shinae Twist. Also serving a sentence at the prison was Mr Leigh Tito. He, too, had a girlfriend who visited him in prison, Ms Te Whakaiti Apiata. The prisoners would have either contact, or non‑contact (booth), visits with their visitors. The Crown case was that the appellant conspired with Ms Twist and Ms Apiata to bring methamphetamine into the prison to supply his fellow inmate, Mr Tito. This was because Mr Tito was not going to have a contact visit with his girlfriend, but Mr Johnson was, so he and Ms Twist were to be used as a conduit to get the drugs to him.
• [4] The Crown case was supported by the content of telephone conversations the appellant and Mr Tito had with their respective girlfriends. On the morning of 13 May 2019, the day of a planned visit, Mr Tito gave Ms Twist’s phone number to his girlfriend saying, “That’s Shinae. She’s coming up. She’s coming up from Aucks. Get a hold of her and meet up with her?” Mr Tito then asked his girlfriend: “[C]an you just give her something for me ... some fucken shit. Just a little bit, please”. He continued, saying “she’s gonna, she’s gonna be a visit (sic) too. Visit the bro. ... Can you tee up with her please?”
• [5] On the same day, Mr Johnson spoke to his girlfriend, Ms Twist, on several occasions. He gave her Ms Apiata’s phone number and name and said to her, “it’s the bros missus”. In the next call, he asked Ms Twist to ring Ms Apiata saying, “cos they’re coming to visit too”. There was then an oblique reference to her acquiring something, saying, “[y]ou shouldn’t have to pay for those”, and “I think it was the bro’s shout anyway”. In respect of their visit later that day, the appellant said “[a]pparently we get the whole visit room to ourselves”. He also checked that Ms Twist was going to have a coffee with “the bro’s missus” in Kawakawa on her trip to the prison, and Ms Twist confirmed she was.
• [6] Mr Tito then rang Ms Apiata again, this time using the appellant’s prison PIN number. He said, “[c]an you just give her a little bit to um. She’s gonna fucken bring it in for the bro”. Ms Apiata then asked “[a]re we on a booth visit, or what are we doing?” to which Mr Tito replied “[a]h I wish, nah, nah I’m, I’m off to the unit after this so we might on a booth visit but we’ll definitely get contact after the visit”. When she asked, “why am I doing this?” he said, “so I can get some shoes and a few things in here. That’s all just like whatever. Just a little bit. Just for me. If you can. Cos they’re getting them for 3 each”. Ms Apiata said “I’m pushing them for 6”, to which Mr Tito replies, “I know you are. Has she got any money on her?” Near the end of the same conversation Mr Tito repeated “[n]ah it’s just something for me ... yeah I don’t wanna say too much. But if you can just give some to her for me please darling”.
• [7] Later that day, Ms Apiata and Ms Twist arrived at the prison in Ms Apiata’s vehicle. Ms Apiata had 13.92 grams of methamphetamine taped inside a baseball cap she was wearing. The vehicle was searched, but nothing was located. When Ms Apiata and Ms Twist entered the prison, they were told by prison officers that they were both to have non-contact visits with their respective boyfriends. Both women were upset by this news. Ms Apiata then returned to the vehicle, leaving the cap there before returning to the prison where they each had visits with their respective partners. When the two women came to leave the prison carpark, the officers again attempted to search the vehicle. Ms Apiata did not co-operate and tried to remove the red cap from the vehicle. There was a scuffle, and the prison officers took the cap from Ms Apiata. Inside it, they found the concealed methamphetamine.

The District Court hearing

• [8] Mr Tito was charged with conspiring to supply methamphetamine. He pleaded guilty following a sentence indication. The appellant pleaded not guilty, and the case proceeded to a jury trial.
• [9] The Crown case was that Ms Twist, Ms Apiata and the appellant agreed to supply methamphetamine to Mr Tito, and that this agreement was formed during the phone calls which took place before the two women arrived at the prison. The Crown case hinged on the fact that Ms Apiata and Mr Tito knew in advance they were to have a non‑contact visit, whereas the appellant and Ms Twist were to have a contact visit. It was for this reason Ms Apiata was directed to give the drugs intended for Mr Tito to Ms Twist, who would then give them to Mr Johnson during their contact visit.
• [10] The Crown called two prison officers as witnesses to establish that Mr Tito and Ms Apiata were to have a non-contact visit that day. However, the Crown’s first witness, prison officer Webb, did not accept that, saying: “My understanding was they were supposed to have been contact visits. They both ended up being both booth‑visited.” Officer Fenton, however, gave contrary evidence, saying that Ms Apiata was scheduled for a non‑contact visit with Mr Tito, whereas Ms Twist was to have a contact visit with the appellant. She also said, “Ms Apiata was aware that she was having a non-contact. Ms Twist did not know until I informed her that the visit had now become a non‑contact.”
• [11] Mr McKean, for the appellant, noted, however, that when the trial Judge questioned Ms Fenton on whether it had previously been established that Mr Tito and Ms Apiata were to have a non-contact visit or whether that was a response to the risk of contraband being brought in, she did not know.
• [12] At the conclusion of the prosecution case, Mr McKean made an application on Mr Johnson’s behalf to have the charge dismissed under s 147 Criminal Procedure Act 2011, relying on the conflicting evidence of the two prison officers. The Judge declined the application saying it would be for the jury to decide which evidence they prefer and, in any event, the phone calls, viewed as a whole, supported the Crown’s case.^[3]

The law

• [13] To succeed on the conviction appeal, the appellant must show that, having regard to the evidence, the jury’s verdict was unreasonable.^[4] In R v Owen, the Supreme Court discussed the approach to such appeals, saying:^[5]

There is, in the end, no need to depart from the language of Parliament. The question is whether the verdict is unreasonable. That is the question the Court of Appeal must answer. The only necessary elaboration is that expressed earlier, namely that a verdict will be unreasonable if, having regard to all the evidence, the jury could not reasonably have been satisfied to the required standard that the accused was guilty.

• [14] In deciding whether a verdict is unreasonable, the following principles apply:^[6]

(a) The appellate court is performing a review function not one of substituting its own view of the evidence.

(b) Appellate review of the evidence must give appropriate weight to such advantages as the jury may have had over the appellate court. Assessment of the honesty and reliability of the witnesses is a classic example.

(c) The weight to be given to individual pieces of evidence is essentially a jury function.

(d) Reasonable minds may disagree on matters of fact.

(e) Under our judicial system the body charged with finding the facts is the jury. Appellate courts should not lightly interfere in this area.

(f) An appellant who [seeks to appeal a jury verdict] must recognise that the appellate Court is not conducting a retrial on the written record. The appellant must articulate clearly and precisely in what respect, or respects, the verdict is said to be unreasonable and why, after making proper allowance for the points made above, the verdict should nevertheless be set aside.

• [15] We now apply these principles to the facts as outlined above, and in light of the submissions made on behalf of the appellant.

Submissions for the appellant

• [16] The appellant’s case largely turned on what he says is the lack of evidence that Mr Tito and Ms Apiata knew they were to have a booth visit, and thus required the appellant to be the conduit for bringing the drugs in because his visit was to be a contact visit. Mr McKean says that Crown witnesses on this issue did not come up to brief. One of the prison officers was emphatic that both Mr Johnson and Mr Tito were to have contact visits, and while the second prison officer confirmed Mr Tito was to have a non-contact visit, she was, in Mr McKean’s submission, unclear as to whether Mr Tito and Ms Apiata would have understood that.
• [17] Mr McKean says without this plank of the Crown case, the Crown could not exclude the reasonable possibility that the drugs the appellant organised with Ms Twist to bring into prison were for him alone. Therefore, the Crown could not prove, to the required standard, there was a conspiracy to supply Mr Tito.
• [18] While the Judge relied on the content of the associated phone calls to say there was still sufficient evidence for the charge to go to the jury, Mr McKean says the phone conversations were, at best, equivocal as to whether:

(a) Mr Tito and Ms Apiata understood he was to have a booth visit; and

(b) the drugs were to be supplied to Mr Tito, rather than simply to the appellant.

• [19] Mr McKean relies, in particular, on the third telephone conversation between Mr Tito and Ms Apiata, where Mr Tito says “[b]ut if you can just give some to her for me, please darling”. Mr McKean submits that, in the context, the words “for me” are asking Ms Apiata to do a favour for Mr Tito, rather than saying the drugs were for him. This is reinforced when he later says “it’s for the bro”. Mr McKean suggests the statement by Mr Tito that it was “so I can get some shoes and a few things in here” also supports the suggestion that he was asking her to bring drugs in for Mr Johnson as a favour for him, and which would have a benefit for him in terms of obtaining some traded items of property. Mr McKean says the query by Mr Tito as to whether Ms Twist has “got any money on her?” suggests she will have to pay for the drugs and is inconsistent with the drugs being smuggled in for Mr Tito.
• [20] Finally, Mr McKean suggests that the telephone conversation shows that neither Ms Apiata or Mr Tito knew whether she was to have a contact visit with Mr Tito, with Mr Tito saying “we will definitely get contact after the visit”.
• [21] For these reasons, Mr McKean submits that the content of the phone conversations did not overcome the inconclusive evidence of the two prison officers as to whether Mr Tito and Ms Apiata were to have a non-contact visit and, therefore, whether the appellant was needed to act as a conduit to supply Mr Tito. Instead, he says the conversations could equally be seen to be Mr Tito arranging for Ms Apiata to give Ms Twist a little bit of methamphetamine to pass on to the appellant as a favour to Mr Tito. Equally, from the appellant’s perspective, “it was the bro’s shout” and Ms Twist should not have to pay for it.

Discussion

• [22] At the heart of the appellant’s appeal is his assertion the Crown case depended on Mr Tito and Ms Apiata knowing they would not have a contact visit, which is why they involved Mr Johnson and Ms Twist to supply the methamphetamine to Mr Tito. And that the evidence on that point was simply so slender that no reasonable jury could have reached the view that the appellant intended to supply methamphetamine to Mr Tito.
• [23] We do not agree. The evidence must be looked at in totality to see whether a jury could reasonably infer that Mr Tito did not believe he could be supplied directly and so arranged for Mr Johnson and Ms Twist to be involved.
• [24] First, we consider there was sufficient evidence to support a finding that Mr Tito thought he would have a non-contact visit. Ms Webb, the first prison officer, simply spoke of her own understanding that both couples would have contact visits. She was a member of the emergency response team, and there is no evidence she was involved in the decisions which governed the planning for such visits. However, the second officer, Ms Fenton, was clear that at the start of the day, she understood Mr Tito was to have a non-contact visit, whereas Mr Johnson was to have a contact visit. The phone calls all occurred on the day of the visit, starting at 10.49 am and ending at 2.10 pm, so the concerns they raised with prison staff about contraband being smuggled in could only have influenced the decision to make both visits non-contact at a later point in the day.
• [25] However, in our view, the understanding of the prison officers was not as relevant as the understanding of the prisoners themselves, in particular, Mr Tito. In that regard, the phone conversations support the Crown case. When Ms Apiata asks Mr Tito what type of visit they will have, Mr Tito says “[a]h I wish, nah, nah, I’m off to the unit after this, so we might (sic) on a booth visit but we’ll definitely get contact after the visit.” The “unit” is a reference to a “punishment” or management unit, which supports the fact he expects this visit will be on strict terms, and although he wishes it would be a contact visit, it will not be. The reference to getting contact after the visit, in context, logically refers to a subsequent visit and does not contradict his statement that there will not be a contact visit that day.
• [26] When the evidence is looked at in its entirety, we are satisfied there was a sufficient basis for the jury to conclude Mr Tito knew he would not get a contact visit and thus, if he was to obtain some methamphetamine, it needed to be with the assistance of Mr Johnson and Ms Twist, as they were scheduled to have a contact visit.
• [27] That leads into the second issue, which is whether the evidence shows an intention to supply to Mr Tito or simply to the appellant. Mr McKean suggested that the evidence pointed to this being a purchase by the appellant which Mr Tito was “shouting” him and, in return, he would get “some shoes and a few things in here”.
• [28] However, again, it is clearly a jury question as to whether the methamphetamine is being arranged by Mr Tito as a “shout” for Mr Johnson, or whether he is arranging it for himself, with a small cut to go to Mr Johnson as payment for the favour. The latter version is clearly available on the evidence. Mr Tito’s calls to Ms Apiata say “can you just give her something for me” on at least two occasions, which can reasonably be taken to mean he will be the recipient of the contraband, brought in using Mr Johnson and Ms Twist.
• [29] Secondly, as the Crown points out, there was no obvious reason why Ms Apiata and Mr Tito would want to smuggle the drugs for Mr Johnson’s benefit, particularly given the value of the drugs (being at least $3,000) and the personal risks involved with this activity. Conversely, the scenario where Mr Tito was the ultimate recipient of the drugs makes sense. He wanted the drugs to trade for other items. Ms Apiata wanted to help Mr Tito. Mr Johnson could benefit from the deal by acting as a middleman and Ms Twist wanted to help him.
• [30] Taking all these factors into account, we are satisfied there was a sufficient evidential foundation for the jury to find that the appellant had agreed to supply methamphetamine to Mr Tito, and its verdict of guilty was not unreasonable.

Prejudice

• [31] As a subsidiary ground of appeal, Mr McKean also submitted there was a real risk of prejudice against the appellant in the trial because he was a prison inmate and he was accepting that he brought methamphetamine into prison. Mr McKean says the members of the jury were not able to overcome that prejudice, and that contributed to them finding him guilty, despite the lack of evidence to show he was part of a conspiracy to supply.

Discussion

• [32] In her opening remarks, the Judge gave an orthodox and thorough direction about prejudice which was specifically aimed at countering this risk. She acknowledged that the jury would hear that the appellant was a prisoner at the time of the alleged offending but said “[t]hat is only relevant because it is an essential part of the circumstances in which the offence is alleged to have been committed”. She went on to say:

What you must not do is reason that because Mr Johnson was in prison at that time, he must be a criminal and so he must have committed the offence with which [he is] charged now, or at least that it is more likely he did, so you must not be prejudiced against him simply because of that. That would be quite wrong, because what you are here to do is to decide if the evidence relating to the alleged offending proves that he committed that offence.

She then gave an example of impermissible reasoning and reminded the jury that they had to approach the evidence “dispassionately”.

• [33] Similarly, in her summing up the Judge made particular reference to the appellant’s status as a prisoner and other adverse evidence about him, giving a clear direction that it was irrelevant to the jury’s decision and must be put “firmly aside”.
• [34] We are satisfied in the circumstances there is no substance to this ground of appeal.

Sentence appeal

• [35] The appellant was sentenced on 30 July 2021.^[7] The Judge took a starting point of three years and one month’s imprisonment. She observed that “without Mr Johnson’s willing co-operation and basically acting as the organiser, none of this could have taken place”.^[8] She considered an aggravating feature of the offending was that it was intended the drugs be smuggled into a prison. Such behaviour undermined the rehabilitative programmes the prison was trying to run and also undermined prison discipline. She also stated that the amount involved was 13.92 grams, notwithstanding the statements in the telephone communications which suggested the amount was going to be small.^[9]
• [36] In terms of mitigating factors, the Judge gave the appellant a 10 per cent discount for personal circumstances. She also adjusted for totality with his existing sentence, to bring the end sentence down to two years and three months’ imprisonment.
• [37] The only ground pursued on appeal against sentence is that the Judge wrongly concluded the conspiracy involved supply of all 13.92 g of methamphetamine found in Ms Apiata’s cap as opposed to “a little bit”. Mr McKean says the Crown never asserted this and, furthermore, the Judge specifically directed the jury that to find Mr Johnson guilty they only needed to be satisfied that the methamphetamine “or at least part of it” was intended for Mr Tito.
• [38] In Mr McKean’s submission, it was incumbent on the Judge, at sentencing, to make her own assessment of what the evidence proved. In that regard, Corrections Officer Webb said she regarded the amount in the cap as a significant amount of methamphetamine.^[10] Similarly, Detective Senior Sergeant Bindon said the amount in the cap was significant, valued between $3,000 and $6,000. However, the phone evidence was that Mr Tito asked Ms Apiata to give Ms Twist “a little bit”, and Mr Johnson said to Ms Twist that she would not have to pay for it; it was the “bro’s shout”. In Mr McKean’s submission, this evidence was not consistent with the agreement being to bring in half an ounce of methamphetamine. While the Judge said that the only drugs were those found on Ms Apiata, Mr McKean suggests it was speculative to say Ms Twist did not have drugs on her as she was not searched. It was possible that Ms Twist was in fact given “a little bit”, which she did not have to pay for, rather than that she was going to receive the whole value of the drugs in the cap. Mr McKean says that, because the Judge held the conspiracy was to bring in the total amount of the drugs in the cap, and treated it as an aggravating feature of the case, and the appellant disputed it, the Crown had to prove it beyond reasonable doubt. He said the evidence did not justify the finding to that standard that all the drugs in the cap were to come into prison.

Discussion

• [39] In our view, the Judge correctly assessed the quantity of methamphetamine involved as being 13.92 g but acknowledged that not all of it would go to Mr Tito. Mr Johnson would retain some for himself as payment for his assistance in this arrangement.^[11] We agree with the Crown that the proposition that the methamphetamine to be supplied was another, unknown quantity, possibly carried by Ms Twist, lacks an evidential foundation. The Crown case was that the conspiracy involved the 13.92 g in Ms Apiata’s cap, and clearly the jury was satisfied as to that. While the appellant was to receive an unknown amount for assisting, we do not consider this affects the correctness of the Judge’s decision to say the conspiracy involved the whole 13.92 g. It was a necessary part of the deal that the defendants were involved in that a portion would be received by Mr Johnson in payment for his assistance. In short, the only evidence of methamphetamine was the amount found in the cap, and it was logical that the Judge relied on this as being the amount involved in the conspiracy for supply.
• [40] In all other respects, there can be no criticism of the sentence. While the appellant’s written submissions asserted the Judge did not take into account totality, it was clear she did and applied a deduction for that. The end sentence could not be considered out of all proportion to the gravity of the overall offending. Similarly, the Judge’s decision to impose a cumulative sentence, when Mr Tito’s sentence was imposed concurrently, did not affect the appropriateness of the appellant’s sentence. The Judge was obliged to impose a concurrent sentence on Mr Tito by s 83(2) of the Sentencing Act 2002. That provision did not apply to the appellant, and there was no error in imposing a cumulative sentence, particularly when it was adjusted for totality.

Result

• [41] The appeal against conviction and sentence is dismissed.

Solicitors:
Webb Ross McNab Kilpatrick Ltd, Whangārei for Appellant
Crown Law Office, Wellington for Respondent

---

^[1] R v Johnson [2021] NZDC 15464 [Sentencing judgment].

^[2] The other grounds on which the sentence was appealed, being failure to adjust for totality and not imposing the sentence concurrently with his existing sentence, were not pursued at the hearing.

^[3] R v Johnson [2021] NZDC 12008 at [11] and [17].

^[4] Criminal Procedure Act 2011, s 232.
^[5] R v Owen [2007] NZSC 102, [2008] 2 NZLR 37 at [17].

^[6] R v Owen, above n 4, at [13], endorsing R v Munro [2007] NZCA 510, [2008] 2 NZLR 87.

^[7] Sentencing judgment, above n 1.

^[8] At [11].

^[9] At [18].

^[10] Although in submissions Mr McKean said she called it a “mother load (sic)”, she denied using that description.

^[11] Sentencing judgment, above n 1, at [2].