R V ARMSTRONG HC AK CRI-2006-019-008458 [2009] NZHC 781 (9 July 2009)

IN THE HIGH COURT OF NEW ZEALAND
AUCKLAND REGISTRY
                                                                        CRI-2006-019-008458



                                       THE QUEEN



                                               v



                     
   DONALD FRANCIS ARMSTRONG



Hearing:         2 July 2009

Appearances: R M A McCoubrey for the Crown
             M N Pecotic
for the Prisoner

Judgment:        9 July 2009


                               JUDGMENT OF DUFFY J



                         This
judgment was delivered by Justice Duffy
                            on 9 July 2009 at 10.00 am, pursuant to
                    
            r 11.5 of the High Court Rules

                          Registrar/Deputy Registrar
                          Date:




Counsel:      M N Pecotic P O Box 6379 Wellesley Street Auckland 1141 for the Prisoner

Solicitors:   Meredith Connell P O Box
2213 Shortland Street Auckland 1140 for the Crown

R V ARMSTRONG HC AK CRI-2006-019-008458 9 July 2009

[1]    This is a disputed
facts hearing to             determine the quantity of
methamphetamine upon which Donald Armstrong is to be sentenced for a charge
of
supply of methamphetamine.


[2]    Mr Armstrong pleaded guilty to one count under s 6(1)(c) of the Misuse of
Drugs Act 1975 that,
between 17 and 31 October 2006, at Auckland, or elsewhere in
the North Island, he supplied the Class A controlled drug, methamphetamine.
The
entry of the guilty plea means there is no doubt that Mr Armstrong has supplied the
Class A controlled drug, methamphetamine,
at the relevant times specified in the
indictment. However, there is a dispute between him and the Crown as to the
quantity of methamphetamine
supplied. Since the quantity supplied will have an
impact on the sentence he receives, it has been necessary to hold this disputed
facts
hearing to determine that issue.


[3]    The hearing has proceeded on the basis that no oral evidence would be
adduced. By
agreement, the parties have referred to documentary evidence that was
either produced at the preliminary hearing, or would have been
produced at the trial.


[4]    There is no direct evidence of the quantity of methamphetamine
Mr Armstrong has supplied. Any idea
of the quantity will have to be gained by a
process of inference from the available evidence.


[5]    It is common ground between
the Crown and Mr Armstrong that on two
occasions, between 17 and 31 October 2006, he received methamphetamine from
someone by the
name of Alan Clinton McQuade.                 He was sentenced on
10 September 2008 to 14 years' imprisonment, following his guilty
pleas to a
number of counts for supply and possession for supply of methamphetamine. It is
also common ground that there is no evidence
of Mr Armstrong receiving
methamphetamine from any other supplier. The case has been approached on the
basis that the methamphetamine
Mr Armstrong sold in October 2006 would have
come from Mr McQuade.


[6]    The Police were alerted to Mr Armstrong's offending,
as a result of
intercepted communications between him and Mr McQuade, following the issue of

an interception warrant permitting
the interception of communications to and from
Mr McQuade. Those communications show that Mr Armstrong was supplying the
"something"
he had received from Mr McQuade to other persons.              The first
conversation refers to Mr Armstrong being two-thirds done
by "2nite". The second
conversation refers to him being one-third of the way through sales.


[7]    On 31 October 2006, the Police
conducted a search of Mr McQuade's vehicle
and, in the boot, they located 13 plastic bags of methamphetamine, each weighing
approximately
one ounce, as well as a set of scales, a number of empty smaller
ziplock plastic bags and a tick book. The Crown submits that this
is relevant
evidence within the meaning of s 7 of the Evidence Act 2006 against Mr Armstrong.


[8]    The Crown contends that from
what was found in the boot of Mr McQuade's
vehicle on 31 October 2006, the Court can safely infer that Mr Armstrong would
have received at least a one ounce
package of methamphetamine from Mr McQuade
when they met on the two earlier occasions in October 2006. This, in turn, is said to
support the inference that Mr Armstrong would then have used the bulk of the
methamphetamine for the purpose of supply, as it would
have been too much for him
to use personally in the 14 day period between 17 and 31 October 2006. To support
this inferential process
the Crown says:


       a)     There is no doubt (by reason of the guilty plea) that Mr Armstrong has
              supplied some
methamphetamine;


       b)     The intercepted communications establish that Mr McQuade was
              Mr Armstrong's supplier,
although, as the Crown has very responsibly
              conceded, there are no overt references to the quantities Mr McQuade
 
            supplied to Mr Armstrong in those communications;


       c)     The intercepted communications contain references to
two-thirds (on
              26 October 2006) and one-third (on 31 October 2006), and the Crown
              says these references
to fractions must be a reference to a fractional
              amount of something; and

       d)      On 31 October 2006, Mr McQuade
was found with 13 neatly
               packaged one ounce bags of methamphetamine, which suggests he
               was someone
who supplied methamphetamine by the ounce (he was
               an ounce dealer).


Hence, it can be inferred that the methamphetamine
Mr Armstrong purchased from
Mr McQuade would have been in quantities of one ounce.


[9]    The Crown accepts that, at the time,
Mr Armstrong used methamphetamine,
and so each one ounce bag would have been reduced by the amount Mr Armstrong
applied to his personal
use. The remainder is what he would have supplied to others.
On the available evidence, this is all that the Crown can point to prove
the amount of
methamphetamine Mr Armstrong has supplied.


[10]   Mr Armstrong contends that the Crown assertion that the quantities
of
methamphetamine he supplied can be safely inferred from the available evidence is
untenable, and that the conclusion for which
the Crown contends is no more than
speculation. He also challenges the admissibility, as evidence against him in this
hearing, of
the illicit items found in Mr McQuade's vehicle on 31 October 2006.


Discussion


[11]   The outcome of the present dispute is relevant
to ascertaining the appropriate
starting point for the sentence to be imposed.       The sentencing tariff, including
appropriate
starting point, for offences against s 6(1)(c) of the Misuse of Drugs is to
be found in R v Fatu  [2006] 2 NZLR 72 (CA).


[12]   The Crown wants to be in a position to submit that Mr Armstrong has been
offending at a commercial level consistent
with supplying approximately two
ounces, less an amount representing personal use, over a 14 day period. This would
set the context
for the starting point to be adopted in terms of the sentencing bands in
R v Fatu. In this regard, the Crown seeks to prove that
Mr Armstrong has supplied
quantities close to the two ounces it contends he would have acquired from
Mr McQuade.      It follows
that unless the Crown can prove inferentially that

Mr Armstrong received those quantities from Mr McQuade, it will not be able
to
prove Mr Armstrong has supplied a similar quantity to his customers.


[13]    The onus is on the Crown to prove beyond reasonable
doubt the factual
situation that it contends: Sentencing Act 2002, s 24(2)(c). Here it can only do so by
reliance on circumstantial
evidence and the inferences it would have the Court draw
from that evidence. Such inferences must be drawn from proven facts.


[14]
   When it comes to drawing inferences from proven facts, a helpful
explanation of how the Court should approach this task is to
be found in R v
Haarhaus HC AK CRI 2007-004-18646 4 June 2009, Stevens J. At [15], Stevens J
said:

        A common sense view is
called for in deciding what inferences or
        conclusions should be drawn from the evidence. The question is whether
       
there is a factual basis and a logical process which leads to a conclusion
        from other proven facts, thus enabling inferences
to be drawn. In this
        connection, it is appropriate to consider the surrounding evidence that I find
        to be reliable
and ask whether it is safe, logical and rational to draw the
        conclusion contended for. Finally, it must be logical and rational
and must
        never be speculation or guesswork. I bear in mind that, in relation to any
        aspect of proof of the alleged
aggravating features, where the evidence
        would support two conclusions of similar weight, to then choose between
       
them would be to guess, which is not permissible: see R v Puttick  (1985) 1
        CRNZ 644 (CA) at 647.

[15]    The first issue is the admissibility of the items found in Mr McQuade's
vehicle on 31 October 2006 to prove
the Crown's allegations as to the quantity of
methamphetamine Mr Armstrong has supplied to another person. Section 7(3) of the
Evidence
Act provides that evidence is relevant in a proceeding if it has a tendency
to prove or disprove anything that is of consequence
to the determination of the
proceeding. When I look at the available evidence in this case, I consider that the
items found in Mr
McQuade's vehicle on 31 October 2006 have no such tendency.
They are not, therefore, relevant to any determination of the quantity
of
methamphetamine Mr Armstrong was supplying to any another person.


[16]    My reasons for reaching this conclusion are as follows.
There is no evidence
that Mr McQuade dealt exclusively in one ounce packages of methamphetamine.
Had the evidence shown he dealt
exclusively in one ounce packages, this would have

supported the inference that he had supplied one ounce packages to Mr Armstrong.
However, the evidence cannot support that inference.


[17]    The only evidence the Crown relies on to support the inference that
Mr Armstrong supplied approximately two ounces is the items found in
Mr McQuade's vehicle on 31 October 2006. They did not meet on
that occasion.
On that day, Mr Armstrong had advised Mr McQuade that he still had one-third to
sell.


[18]    Evidence of how, on
one occasion (31 October 2006), Mr McQuade
packaged the methamphetamine he was to supply is insufficient to prove that this is
how
he always packaged it. It is illogical to make such a generalisation from one
particular event. It follows that I do not accept that
I can safely infer that when
Messrs McQuade and Armstrong met on the two occasions earlier in October 2006,
the methamphetamine Mr
Armstrong then received from Mr McQuade would have
been in the same quantities as the one ounce bags found in his possession on
31
October 2006.


[19]    Furthermore, the illicit items found in Mr McQuade's possession on
31 October 2006 are more consistent with
him selling varying quantities of
methamphetamine. In addition to the 13 one ounce bags, he had a set of scales and a
collection
of empty ziplock bags that were of a smaller size than those used to
package the one ounce bags. This suggests to me that Mr McQuade
may have been
just as likely to sell smaller quantities of methamphetamine than one ounce
packages, if requested to do so.


[20]
   The parties were content to have the sentencing notes of Mr McQuade form
part of the Court's consideration. The sentencing notes
for Mr McQuade show that
he was running a very commercial operation. At [11] of the judgment, the Judge
refers to Mr McQuade having
225 meetings with customers in October 2006, which
is said to confirm the scale of his illegal activity.   There is no evidence that
Mr Armstrong was in a special position as a customer of Mr McQuade.            The
available evidence suggests to me that Mr Armstrong
was one of a large number of
customers. Consequently, it cannot be assumed that because Mr McQuade contacted

Mr Armstrong on 31
October 2006 regarding supply of methamphetamine,
Mr McQuade had come to Auckland that day (he was from the Waikato region) with
methamphetamine packaged in quantities favoured by Mr Armstrong for purchase.


[21]   I cannot see how the available evidence can
lead me to safely, logically and
rationally draw the conclusion that the Crown contends, especially given the burden
of proof the
Crown must discharge. Any conclusion I reached that Mr Armstrong
had purchased one ounce bags from Mr McQuade could only be the result
of
speculation or guesswork. There is nothing to suggest that the version of events the
Crown argues for is to be preferred over
other versions. Any choice between them
would be arbitrary or speculative, which is not permissible. As was recognised in R
v Puttick,
where the evidence supports two conclusions of similar weight, to choose
between them would be to guess. It follows that there is nothing that was found in
Mr McQuade's vehicle on
31 October 2006 that would prove or disprove the
quantities of methamphetamine which Mr Armstrong had acquired from
Mr McQuade on
the two earlier occasions. Hence, what was found on that occasion
is irrelevant to the sentencing of Mr Armstrong.


[22]   At best,
all the Crown can prove is that one of the conclusions to be drawn
from the circumstantial evidence supports its contention. But
the conclusion that the
amount of methamphetamine Mr Armstrong purchased on those occasions may have
differed from the amounts seized
on 31 October 2006 is an equally tenable inference.
I am left to conclude that there is nothing to prove beyond reasonable doubt
that had
Mr Armstrong purchased methamphetamine from Mr McQuade on 31 October 2006,
the quantity would have been no less than an
ounce package.


[23]   This leaves open the issue as to how much methamphetamine has been
supplied. Mr Armstrong contends that his
sentencing must be approached on the
basis his offending falls within band one of Fatu. That relates to supply of less than
five
grams. Band two covers supply of quantities between five to 250 grams. The
references in the intercepted communications to Mr Armstrong
being two-thirds
through (26 October 2006) and one-third to sell (on 31 October 2006) do not indicate
the size of the original quantity.
     I have heard no evidence of how much
methamphetamine Mr Armstrong would personally have used; nor have I heard

evidence of
how much of this drug any one person can consume over a 14 day
period. I cannot, therefore, attempt to construct a notional quantity
which would be
enough to cover Mr Armstrong's personal use and leave him in the position where he
still had fractional amounts of
the original quantity to dispose of at the time he heard
from Mr McQuade.


[24]    In the course of his Police interview, Mr Armstrong
gave evidence that
methamphetamine can be sold in packages of .1 of a gram, which usually sell for
$100, but sometimes up to $200.
            He described obtaining one gram of
methamphetamine as being "absolute luxury".           There is nothing about these
statements that is consistent with Mr Armstrong having purchased methamphetamine
by the ounce and then having on-sold approximately
that amount (minus something
for personal use) to his customers over the relevant two week period. If anything,
they tend to suggest
that a supplier of methamphetamine could do well commercially
by selling less than five grams over a two week period.           
   Theoretically, if
Mr Armstrong had purchased no more than 4.9 grams, then over a two week period
this could provide the opportunity
for 49 potential sales, each of .1 grams. This
number of potential sales could, in theory, give rise to the circumstance where, as
at
31 October 2006, he still had one-third of his existing supply left and, therefore, had
to advise his supplier that there was
no need to re-stock. Since there is no evidence
of the quantities in which Mr Armstrong sold methamphetamine, this scenario
cannot
be excluded as unrealistic. It makes no allowance for some of the theoretical
4.9 grams to be consumed for personal use, but, since
there is no evidence of how
much Mr Armstrong would have personally used over a two week period, it is not
possible to allow for
that. What this notional view does show is that a quantity that
is less than five grams of methamphetamine realistically fits with
the quantity a
commercial supplier might supply over a two week period. I consider, therefore, that
it would be quite wrong to assume,
on the strength of the available evidence, that
Mr Armstrong has supplied in excess of five grams between 17 and 31 October
2006.


[25]    It follows that unless, between now and the date of sentencing, the Crown can
produce additional evidence to help establish
the quantity of methamphetamine

Mr Armstrong has supplied, he will have to be sentenced on the basis of the least
amount, which will bring him under band one of Fatu.


[26]
  Mr Armstrong is to be sentenced at 9.00 am on 15 September 2009. A pre-
sentence report with full appendices is to be provided
for that date. His bail is to
continue on the same terms as before.




                                                        
      Duffy J