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High Court of New Zealand Decisions |
Last Updated: 25 March 2019
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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,
OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT
PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE
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IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
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CRI-2016-044-004279
[2018] NZHC 2602 |
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THE QUEEN
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v
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F
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Hearing:
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20-21 September 2018
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Appearances:
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N Webby for Crown
M Pecotic for Defendant
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Judgment:
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5 October 2018
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JUDGMENT OF PALMER J
This judgment was delivered by Justice Palmer on 5 October 2018 at 3.00 pm
pursuant to R 11.5 of the High Court Rules Registrar / Deputy Registrar Date...........................
Solicitors:
Meredith Connell, Auckland M Pecotic, Barrister, Auckland
R v F [2018] NZHC 2602 [5 October 2018]
Summary
[1] Ms F pleaded guilty to two charges of supplying methamphetamine and one charge of supplying cocaine, which are both class A drugs.1 The Crown submits she should be sentenced on the basis she was the kingpin of a large methamphetamine supply operation. Ms F submits she was a “Tongan blonde” who was only a minor cog in the operation. After a disputed facts hearing, I consider it is established beyond reasonable doubt that Ms F passed on directions about the supply of methamphetamine and counted and delivered money. That was an important and crucial role. But I do not consider it is established beyond reasonable doubt that she was the kingpin directing or organising the operation.
Context of offending
[2] Ms F was charged, along with a number of other defendants, with supplying very large amounts of methamphetamine, and a lesser but still large amount of cocaine. Relevantly, Mr Henry Robati pleaded guilty to a charge of supplying, and Mr Adrian Le’Ca and Mr Fred Uputaua pleaded guilty to charges of possessing, 14.9 kilograms of methamphetamine and 1.9 kilograms of cocaine on 30 September 2016. Mr Callan Hughes pleaded guilty to supplying nine kilograms of methamphetamine on 8 November 2016.
Ms F’s pleas
[3] Ms F was due to stand trial on 12 charges of supplying methamphetamine and one of supplying cocaine. On Wednesday 20 June 2018, the day before the trial was due to commence, she pleaded guilty to three charges:2
(a) one charge of supplying 14.9 kilograms of methamphetamine and one charge of supplying 1.9 kilograms of cocaine to Mr Le’Ca and
2 Minute No 3 of Palmer J, dated 20 June 2018.
Mr Uputaua on or about 29 September 2016, together with Mr Robati; and
(b) one charge of supplying nine kilograms of methamphetamine on 8 November 2016 to a person unknown, on or about 8 November 2106, together with her then-partner, Mr Hughes.
[4] The Crown will apply to withdraw the other charges.
[5] Ms F was scheduled to be sentenced on 24 August 2018. Ms F pleaded guilty on the basis of an agreed summary of facts. But that is largely a recitation of the content of intercepted communications, and police observation of activities, of Mr Hughes, Mr Kane McArley, Ms F, Mr Le’Ca, Mr Robati and Mr Uputaua in relation to the first two offences and of Mr Hughes, Ms F and Mr McArley in relation to the second offence. The closest the summary comes to identifying the role played by Ms F is in stating:
The intercepted communications have identified that the defendant [F] was the main supplier to this group.
The defendant [F] arranged for the supply to the defendant Hughes, who in turn worked with the defendant McArley to supply others.
On other occasions (as outlined below) the defendant [F] organised to supply other groups and individuals and organised the defendants Hughes, McArley and Robati to deliver methamphetamine, cocaine and money to other parties.
[6] The agreed summary left considerable room for speculation on Ms F’s role. The parties offered very different interpretations. The Crown’s position was Ms F was “the head of the drug syndicate and had organised on two separate occasions for ‘cut- outs’ to deliver substantial quantities of drugs to others”.3 The Crown submitted Ms F’s culpability fell into the same category as that of Mr Le’ca and was certainly greater than that of Mr Uputaua and Mr Robati in relation to the first two offences.4 Mr Webby, for the Crown, did not agree a disputed fact hearing was required.
3 Memorandum of the Crown’s submissions on sentence of 15 August 2018 at [5.1](d).
4 At [7.2].
[7] Ms Pecotic, for Ms F, submitted the summary of facts did not capture all the communications between the parties,5 that Ms F is a naïve and easily-manipulated person and that she was in a relationship with Mr Hughes he controlled, characterised by violence and verbal abuse.6 She submitted Ms F was not the organiser behind the transactions, but only a conduit, passing on information to assist in their planning. She relied on Ms F’s affidavit of 24 August 2018, filed for the purposes of sentencing, in which Ms F set out her role and relationship. Ms Pecotic agreed I should not determine Ms F’s sentence without a hearing of disputed facts.
[8] The extent to which Ms F was in charge of the drug supplies of which she is convicted is very relevant and significant to her sentence. I was not confident a miscarriage of justice would be avoided if I sentenced Ms F without further inquiry into the facts.7 Accordingly, after hearing from counsel on 24 August 2018, I directed a disputed facts hearing be held.
Disputed facts hearing
[9] On 20 and 21 September 2018, I heard evidence and submissions from the Crown and Ms F. The Crown’s evidence consisted of a statement of facts detailing the background of the offences, certificates of conviction of Ms F’s co-offenders, two formal statements by police officers, documentary and photographic exhibits and intercepted communications which were played to me. The defence evidence consisted of additional intercepted communications, an affidavit she had sworn before the scheduled sentencing and oral evidence from Ms F in person.
Law relevant to disputed facts
[10] Section 24 of the Sentencing Act 2002 states;
24 Proof of facts
(1) In determining a sentence or other disposition of the case, a court—
5 Memorandum of counsel for sentence of 22 August 2018 at [2.1].
6 At [2.2].
(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.
(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other,—
(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:
(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the trial:
(c) the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact, and must negate beyond a reasonable doubt any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e) either party may cross-examine any witness called by the other party.
(3) For the purposes of this section,—
aggravating fact means any fact that—
(a) the prosecutor asserts as a fact that justifies a greater penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case
mitigating fact means any fact that—
(a) the offender asserts as a fact that justifies a lesser penalty or other outcome than might otherwise be appropriate for the offence; and
(b) the court accepts is a fact that may, if established, have that effect on the sentence or other disposition of the case.
[11] Stevens J stated the approach to a disputed facts hearing in R v Haarhaus:8
The approach required at such a disputed facts hearing is as follows. First, the Judge must accept as proved all facts, express or implied, that are essential to a plea of guilty: see s 24(1)(b) of the Act and R v Bryant [1980] 1 NZLR 264 (CA) at 269. Second, the Judge may accept as proved any facts agreed on by the prosecutor and the offender: see s 24(1)(a). This applies to the undisputed portions of the Crown summary. Where facts remain in dispute, the Court must indicate to the parties the weight it would be likely to attach to the disputed fact and its significance to the sentence: see s 24(2)(a). This aspect was addressed by Lang J when the pleas of guilty were taken. Next, if the prosecutor wishes to rely on a disputed aggravating fact, the prosecutor must prove its existence beyond reasonable doubt: see s 24(2)(c). Evidence as to the existence of such fact may be adduced at a hearing: see s 24(2)(b). Further, either party may cross-examine any witness called at the hearing: see 24(2)(e). Finally, the Court must determine whether the prosecutor has proved the existence of any disputed aggravating fact beyond reasonable doubt.
Submissions
[12] Mr Webby, for the Crown, submits the evidence proves beyond reasonable doubt Ms F was the organiser and instigator of the methamphetamine supply operation. He points out she contacted Mr Robati, she paid him, she was concerned for his safety. He points to her being the person to whom Mr Hughes owed money and her putting methamphetamine supply on hold for a day or two when they had relationship problems. In relation to the 8 November 2018 offending, he submits Mr Hughes was working for Ms F, she told him where to be, what to do and what not to do and gave him directions. The Crown submits Mr Hughes was below Ms F in the hierarchy. Mr Webby also submitted it is inconceivable that Ms F was trusted to count millions of dollars and pass crucial messages on but did not have a greater role.
[13] Ms Pecotic, for Ms F, submits it is patently clear Ms F was not the kingpin of the methamphetamine operation. She submits Ms F was a “a bit of a Tongan blonde”, easily able to be manipulated. She submits it is clear Mr Hughes was the dominant figure in the relationship with Ms F, abusing her verbally and physically, to which she was vulnerable. She submits Ms F’s role in the operation was to pass on to Mr Hughes messages she received from her brother’s associates, through her brother’s Wickr
8 R v Haarhaus HC Auckland CRI-2007-004-18646, 4 June 2009 at [9].
account, and to count money. She points to independent evidence corroborating Ms F receiving messages on internet-based applications like Wickr, Facetime and Messenger. She submits Ms F was part of the operation: a cog in the wheel. But she submits the Crown has not proved Ms F had the power or ability to be the one in charge, telling everybody else what to do.
What role did Ms F play in the methamphetamine supply?
[14] The evidence for both sides at the disputed facts hearing is consistent with the statements in the agreed summary of facts that Ms F arranged for supply of methamphetamine. The question is whether she was in charge of organising it or whether she was simply passing on and complying with messages from associates of her brother, using his Wickr account and other accounts.
[15] I do not accept Ms Pecotic’s submissions downplaying Ms F’s competence and ability. Her evidence was clear, consistent and conveyed her intelligence. And the role to which she admits, of receiving instructions from her brother’s associates to pass on to Mr Hughes, was a crucial one. The evidence establishes, beyond reasonable doubt, she had a vital role as a trusted communications link, was willing to play that role and knew what she was doing. As she admits, she was also trusted to count large sums of money, amounting to millions of dollars. She used code in her communications. She was clearly not naïve about the use of phones.9 And, as she pointed out and demonstrated to her then-partner Mr Hughes, without her receiving and passing on messages about how much money was required, and when and where, the operation stopped. That link was indispensable to both Mr Hughes in running his operation, and to the Wickr contacts in distributing to the supply network. She was more than a minor cog in the methamphetamine supply operation.
[16] But I do not consider the Crown has proven, beyond reasonable doubt, Ms F was the kingpin or in charge of directing or organising the operation. While the Crown’s circumstantial evidence is consistent with the inference Ms F was in charge it is also consistent with Ms F’s clear, consistent and fulsome testimony she was not:
9 Intercepted call: Africa 117 at 15:47 30 September 2016.
(a) There is clear evidence Ms F used Wickr, Facetime and Messenger.10 Her brother is said to have been arrested for drug offending a few days after arriving back in New Zealand.11 Ms F met Mr Hughes through her brother. It is a reasonable possibility she used her brother’s Wickr account and her brother told her she could trust Mr Hughes and Mr Robati and to communicate with them.12
(b) There is evidence in the intercepted communications corroborating Ms F’s evidence Mr Hughes physically abused her.13 It is a reasonable possibility she was vulnerable to threats from Mr Hughes.
(c) Intercepted communications corroborate Ms F’s evidence that Mr Hughes was “paranoid” which could explain Ms F making calls to Mr Robati and others at Mr Hughes’ direction.
(d) It is reasonably possible: Ms F was only passing on others’ directions to Mr Hughes on 8 November 2018; she “let” Mr Hughes “in on work in the first place” by passing on messages to him rather than being the organiser herself;14 she portrayed herself as having more power than she really did; and the $750,000 Mr Hughes talks of owing Ms F was owed to those to whom it was to be delivered.
[17] I consider the evidence stops short of establishing, beyond reasonable doubt, Ms F was directing Mr Hughes. The closest it comes is in relation to the offending on 8 November 2016, where Ms F directs Mr Hughes where to go and what to do. But that is also consistent with Ms F’s evidence she was receiving messages on Wickr or other social media and passing them on, as a conduit.
11 NOE at 38/2–5.
12 Notes of Evidence at 25/23–30, 26/2–3, 37/33, 39/3, 55/31.
14 Intercepted texts: Plains 1288 at 12.29 24 October 2016 and Plains 1290 at 12.29 24 October 2016.
[18] In respect of the three offences, the evidence establishes, beyond reasonable doubt, Ms F passed on directions about the supply of methamphetamine and counted the money that was used to pay for it. That is an important and crucial role, but not a directing or organising one. That is the basis on which she must be sentenced.
Palmer J
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