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William Hines v/s The Queen


Company & Directors' Information:- I-QUEEN PRIVATE LIMITED [Active] CIN = U74999KL2017PTC048635

    CA No. 267 of 2017

    Decided On, 06 July 2018

    At, Court of Appeal of New Zealand

    By, THE HONOURABLE MR. JUSTICE MILLER
    By, THE HONOURABLE MR. JUSTICE ELLIS & THE HONOURABLE MR. JUSTICE WOOLFORD

    For the Appellant: G.C. Gotlieb, J.G. Krebs, Advocates. For the Respondent: RMA. McCoubrey, FMT. Culliney, Advocates.



Judgment Text

REASONS OF THE COURT

(Given by Ellis J)

[1] Following a trial before Downs J and a jury, Mr Hines and eight others were convicted of a number of serious methamphetamine related offences. The Judge sentenced the offenders on the basis that each of them had, in various ways, been responsible for manufacturing approximately one kilogram of methamphetamine in 2015. As the perceived architect of the group, Mr Hines was sentenced to 18 and a half years’ imprisonment. The Judge imposed a minimum period of imprisonment (MPI) of eight years and four months.[1]

[2] Mr Hines and six of his co-defendants appealed their convictions, and Mr Hines and five of his co-defendants appealed their sentences. The appeals of all but Mr Hines were heard by this Court on 10 October 2017.[2] Judgment was delivered on 20 December 2017 (the earlier judgment).[3] All of the conviction appeals were dismissed but the sentence appeals by three of the group were allowed.

[3] The majority of the points raised by Mr Hines in relation to his conviction appeal have, effectively, been dealt with in the earlier judgment. For that reason, we are able to deal with them relatively briefly here.

[4] As far as the sentence appeal is concerned, the reduction in sentence allowed in the earlier decision for two of Mr Hines’ co-defendants necessarily has an impact on Mr Hines’ position.[4] This Court’s reasoning that there had been an element of double counting in their sentences applies equally to Mr Hines.[5] As well, there are unique circumstances relating to Mr Hines’ health which also merit greater consideration in a sentencing context. Accordingly, those issues will be the principal focus of this judgment.

[5] Before turning to consider these matters, however, it is necessary to say a little more by way of background. What follows is largely taken from the earlier judgment.

Background

[6] The relevant aspects of the Crown case against all defendants can be divided into two parts:

(a) manufacturing methamphetamine on the evening of 18 April 2015 and/or the morning of 19 April 2015; and

(b) the storage unit.

Manufacturing of methamphetamine on or about 18 April 2015

[7] The charges have their foundation in a police investigation which focused upon the suspected manufacture and distribution of methamphetamine by members of the East chapter of the Head Hunters Motorcycle Club (the Head Hunters). Mr Hines was said to be the leader of the group. He, together with Mr Te Here Maaka (Mr T Maaka), Mr Falco Maaka (Mr F Maaka) and Mr Sadler were patched members of the gang. Mr Edwardson (Mr Sadler’s father) was a prospect. Mr Vijn and Mr Atkinson were associated with members of the Head Hunters.

[8] The principal evidence obtained by police as a result of their investigation comprised intercepted telephone communications between 26 March 2015 to 26 July 2015 and the results of visual surveillance of the targets.

[9] The Crown case at trial was that Mr Hines, the two Messrs Maaka, Mr Edwardson and Mr Sadler worked together to source the materials required to manufacture methamphetamine and that Mr Vijn assisted by obtaining toluene and a water distiller to be used in that process. The Crown said that Mr Atkinson was the 'cook' and that the manufacturing process took place on the evening of 18 April 2015 and/or the morning of 19 April 2015 at a Glen Eden property. That property was owned by a friend of Mr T Maaka. The Crown alleged that, following the cook, the group’s intention was to arrange for the distribution of the resulting methamphetamine. It was alleged that the cook resulted in one kilogram of methamphetamine.

[10] It was accepted that on 10 April 2015, Mr Sadler obtained 20 sets of ContacNT from a Mr Sun.[6] There was expert evidence that the quantity of Contac-NT supplied by Mr Sun to Mr Sadler could have yielded about one kilogram of methamphetamine.

[11] The intercepted communications involving Mr Sadler, Mr Edwardson and Mr Hines indicated a heightened level of activity between 10 April 2015 and 18 April 2015. The Crown accepted it was not possible to identify exactly what was being discussed during this period but submitted that the conversations were consistent with preparations for a significant event.

[12] Intercepted conversations on 18 April 2015 and the early hours of 19 April 2015 laid the foundation for the Crown case that methamphetamine was manufactured at that time at 36 Withers Road.

[13] No methamphetamine was ever located at the Glen Eden address. When the house was forensically examined on 28 July 2015, it was found to have contained methamphetamine residue at a level 10 times higher than the highest levels that would be expected if methamphetamine had simply been smoked in that property.

The storage unit

[14] On 4 June 2015, the police executed a search warrant at a storage unit in Panmure. Inside the unit the police found a black van registered in the name of a company owned by Mr Vousden, another of the defendants at trial. Inside the van was:

(a) 136.5 grams of methamphetamine packaged in five one-ounce bags valued at approximately $60,000;

(b) approximately 33 litres of hypophosphorous acid valued at approximately $65,000;

(c) nine kilograms of iodine valued at somewhere between $9,000 and $45,000;

(d) five firearms, including a revolver wrapped in a bandana; and

(e) a large quantity of ammunition.

[15] No fingerprints were found on the van or its contents. But DNA extracted from a bandana wrapped around the revolver matched Mr Hines’ DNA profile.[7] The Crown’s case was that these items were in the possession of Mr Hines, Mr Sadler, Mr T Maaka and Mr Edwardson.

[16] There was evidence that Nadine Stone, a friend of Mr Sadler and an acquaintance of Mr T Maaka, rented the storage unit on 18 April 2015, the same day methamphetamine was said to have been manufactured at 36 Withers Road. The manager of the storage unit recalled two Māori men driving the van into the storage unit approximately two hours after Ms Stone had signed the papers to rent the unit.

[17] A number of intercepted communications linked Mr Sadler and Mr T Maaka to the storage unit. Further intercepted communications between Mr Edwardson and Mr Sadler on 28 May 2015 were to the effect that Mr Edwardson had told Mr Sadler that he had been going to the unit.

[18] The police arrested Ms Stone on 4 June 2015. That sparked a series of communications between Mr Edwardson and Mr Sadler, during which Mr Sadler asked Mr Edwardson if he '[got] rid of it'. Mr Edwardson replied he was trying to. In a conversation involving Mr Hines, Mr Edwardson, Mr Sadler and Mr T Maaka later that evening Mr Hines commented that Ms Stone and Mr Sadler would be in prison 'for a long time'. Mr Sadler and Mr Edwards later discussed what Ms Stone might have said to police.

The High Court trial

[19] After a five-week trial Mr Hines was found guilty on the following ten charges:[8]

(a) manufacturing methamphetamine;

(b) possessing methamphetamine for the purpose of supply;

(c) possessing materials relating to the manufacture of methamphetamine;

(d) possession of a firearm for other than some lawful, proper and sufficient purpose (x 5);

(e) possession of ammunition for other than some lawful, proper and sufficient purpose; and

(f) participation in an organised criminal group.

[20] He was found not guilty on two charges of money laundering and was discharged on other charges at the conclusion of the prosecution case.[9]

Sentencing

[21] At sentencing, Downs J treated the manufacturing as the index charge. As to the quantity of methamphetamine that had been manufactured he said:

[4] I am sure at least one kilogram of methamphetamine was made. I reach this conclusion for eight reasons. First, manufacture occurred eight days after Mr Jia Sun supplied 4.46 kilograms of Contac-NT to Mr Sadler, your second-in-charge. This figure is known because the intercepted communications refer specifically to 20 sets of Contac-NT. Second, Mr Sun dealt in large amounts of that substance. Third, much time and effort were dedicated to this operation, in turn implying manufacture on a substantial scale. So too personnel vis-a-vis gang members under your direction. Fourth, Mr Atkinson, an experienced cook, was enlisted as an independent contractor. Fifth, there was nothing in the intercepted communications to imply dissatisfaction with his work. Sixth, conversion of 20 sets or 4.46 kilograms of Contac-NT to methamphetamine would typically produce between 900 grams and 1.3 kilograms of methamphetamine. Mr Atkinson was an experienced cook. Seventh, 136.5 grams of methamphetamine was found in a storage unit in early June 2015. Whereas you (and other defendants) submit this was all that was made, it is inherently unlikely the bulk of the methamphetamine had not already been disposed of. I reach this conclusion notwithstanding the absence of specific communications in relation to distribution. Relevantly, that unit was rented on 18 April, the same day as the manufacture. Eighth, the case against Mr Sadler was that he was a party to manufacture largely because of his role in obtaining 20 sets of Contac-NT from Mr Sun.

[22] Downs J was of the view that Mr Hines instigated the manufacturing in his role as a leader of the Head Hunters’ East chapter. Mr Hines led an organised criminal enterprise involving careful packaging, the collection of the items necessary for the manufacture and the rental of the unit on the same day as the manufacture.[10] Although Mr Hines was not present during the actual process, he was kept informed of progress.[11] His DNA was found on the bandana around one of the firearms.[12] While one of his co-defendants was in prison, Mr Hines was recorded as emphasising to him he did not want the police taking what was inside the unit.[13]

[23] The Judge found that Mr Hines’ offending fell 'firmly' within band four of

R v Fatu.[14] He observed that his placement within that band depended not just on the quantity of methamphetamine but on the part he played in the manufacture.[15] Having regard to the amount made, Mr Hines’ 'apex role' and the gang dimension, Downs J adopted a starting point of 16 years’ imprisonment.[16]

[24] That starting point was uplifted by three and a half years to represent the 'storage unit' offending,[17] and another six months to reflect Mr Hines’ 'extensive' criminal history which included previous offences against the Misuse of Drugs Act 1975.[18]

[25] Downs J noted Mr Hines’ poor health; that he was (then) 64 years old, has typetwo diabetes and endstage renal failure. He suffers heart disease and requires regular dialysis.[19] The Judge noted ill-health can operate to mitigate an otherwise appropriate sentence, particularly where the defendant would suffer more than an ordinary person in prison because of his condition. He noted that Mr Hines could not receive dialysis with optimal regularity (every other day) while in prison, that he finds it tiring travelling the short distance between the prison and hospital, and that his imprisonment makes it unlikely Mr Hines will be eligible to receive a kidney transplant which affects his life expectancy.[20] For these reasons Downs J reduced Mr Hines’ sentence by 18 months’ imprisonment (eight per cent).[21]

[26] Taking into account the nature and seriousness of Mr Hines’ offending, his 'apex' role in an organised criminal enterprise, criminal history and the risk of harm posed to the community, Downs J imposed an MPI of eight years and four months’ imprisonment (45 per cent of Mr Hines’ sentence).[22] The Judge made it clear that he would have imposed a minimum period of 55 per cent had it not been for Mr Hines’ health issues.

[27] Mr Hines end sentence was therefore one of 18 and a half years’ imprisonment with a minimum period of eight years and four months.[23]

Conviction appeal

[28] In written submissions filed in 2017, counsel for Mr Hines on appeal, Messrs Gotlieb and Krebs (neither of whom were involved in the trial) articulated his grounds of appeal against conviction as follows:

(a) His Honour when giving his direction concerning circumstantial/ evidence of inference failed to sufficiently stress the need for the jury to resist speculation and did not address or direct the jury as to how they should approach a case where more than one inference is reasonably available on the evidence. This despite being requested by counsel to do so;

(b) The learned Judge’s direction against prejudice was insufficiently strong given the central focus of the Crown case on the fact that the appellant was a gang member and the president thereof;

(c) His Honour was wrong to admit evidence of Detective Senior Sergeant McNaughton that the appellant was:

(i) At least a co-leader in the relevant period with another gang member, Wayne Doyle; and

(ii) The east chapter operated under the auspices of a committee comprised of Mr Doyle and Mr Hines;

(d) Having admitted that evidence His Honour indicated in a bench note that he gave the jury a warning against prejudice in relation to gangs immediately prior to the evidence being given. The wording of His Honour’s warning is not recorded in either the bench note nor in the notes of evidence and has been requested from the Court. The appellant may wish to address the adequacy of such warning once it is known exactly what the Judge has said.

[29] Since the filing of those submissions, however, this Court has heard and determined the appeals of Mr Hines’ co-offenders.[24] And as noted earlier, in doing so the Court has effectively dealt with several of Mr Hines’ appeal points and on those matters we can therefore be brief. We nonetheless address each of the points in turn.

Inferences

[30] Mr Gotlieb said, and we accept, that the case against Mr Hines was largely a circumstantial one. In essence, its success principally depended on the jury accepting the guilt of the other defendants (and, in particular, Mr Sadler, Mr T Maaka and Mr Edwardson) and that they acted at the direction, and under the control, of Mr Hines. That was a matter of inference which (the Crown said) could be drawn from:

(a) the evidence of Detective Senior Sergeant McNaughton (discussed later below) that Mr Hines was one of the two leaders of the East chapter of the Head Hunters, of which Messrs Sadler and Maaka were patched members and Mr Edwardson was a prospect; and

(b) intercepted communications which showed the three men deferring to Mr Hines and following his orders.

[31] Inferences about Mr Hines’ more general involvement in the offending were said to be available from the evidence of his DNA on the bandana and the evidence of Mr Hines’ direct involvement with the known drug dealer, Mr Sun, who was said to have supplied mobile phones to Mr Hines and others in the group as well as the 20 sets of Contac-NT used in the manufacturing.

[32] Mr Gotlieb said that part of the defence case was that the available evidence could reasonably support a number of different inferences, some of which were favourable (or at least not unfavourable) to Mr Hines. He was critical of Downs J for failing sufficiently to stress the need for the jury to resist speculation and refusing a request by Mr Hines’ counsel to direct them about what they should do where more than one inference is reasonably available on the evidence.

[33] This issue has already been addressed by this Court in its earlier decision. After noting early in the judgment that the Judge’s directions on circumstantial evidence and inferences were orthodox and that the jury had been told on three separate occasions not to speculate,[25] the Court returned to address the topic in more detail later on:

[75] As we have already stated, the Judge gave an orthodox direction on circumstantial evidence and inferences in his summing-up noting the jury were entitled to draw inferences, but not to guess or speculate. After the jury had retired to consider their verdict, the Judge noted, as a matter arising, the following:

When the jury retired to commence their deliberations, Mr Holland on behalf of Mr Hines submitted because the Crown case was circumstantial in nature, a distinction needed to be drawn between the proper drawing of an inference and speculation, and hence I should direct the jury that where two inferences were of equal weight, they should draw the inference favourable to the defendant. I decline to do so on the basis of R v Puttick, and its progeny.

[76] Ms Smith accepted that to the extent that the Judge declined to give a redirection in terms disapproved by the Court of Appeal in R v Puttick and its progeny, the decision could not be faulted. However, Ms Smith submitted the Judge ought to have gone further in the case of Mr Vijn by insisting the jury should reach a position as contended for by the defence where it had a range of inferences available - some favourable and some unfavourable.

[77] Where two or more inferences are possible based on the facts, this Court has confirmed that a trial Judge does not need to direct a jury to adopt the inference most favourable to the defendant. A jury may conclude that only one inference is open on its assessment of the evidence or that one inference carries greater weight than the other, but speculation in aid of a defendant is no more permissible than speculation in aid of the prosecution.

[78] The facts from which the Crown may seek to draw inferences need not be proved beyond reasonable doubt. This Court has discouraged excessive jury directions on the issue of proof by inference from circumstantial evidence. This Court has also ruled that the concerns underlying directions on inferences can be met by a combination of the orthodox direction on circumstantial evidence and firm directions as to the need for proof beyond reasonable doubt. We agree with the Crown that the Judge’s directions to the jury were entirely consistent with these authorities.

(Footnotes omitted.)

[34] While it may be that the case against Mr Hines was 'more' circumstantial than the case against his co-defendants, that does not detract from the force of the points made above. The case against Mr Hines may have been circumstantial, but it was strong. There is nothing further to be said. The Judge’s directions cannot be criticised.

Direction against prejudice

[35] This appeal ground is intertwined with the more specific ground relating to DSS McNaughton’s evidence and so we return to it in that context shortly. For now, however, we merely note that in his summing up Downs J gave a completely orthodox caution against prejudice arising from the gang context. He said:

As I said at the beginning of the trial, alleged drug offending can give rise to strong views or feelings. So too gangs and alleged offending by gangs. You must put that type of response entirely to one side. The mere fact that one or more of the defendants is connected to a gang says nothing about guilt or whether the charges are proved.

[36] In response to the contention that something more was required, we can do no better than to repeat what this Court said in the earlier judgment:[26]

[88] The Judge properly explained to the jury the limited purpose of the Detective Senior Sergeant’s evidence and the need for them to put to one side any feelings of prejudice they may have because of the evidence that some of the defendants were involved with the Head Hunters. In particular, the Judge warned the jury the evidence about gang involvement could give rise to strong views or feelings and that the jury needed to put 'that type of response entirely to one side. The mere fact one or more of the defendants is connected to a gang says nothing about guilt or whether the charges are proved.'

[89] That was an entirely appropriate direction in the context of this case. Nothing more was required. We are therefore satisfied there is no merit in this ground, or any of the grounds of Mr Edwardson’s appeal. We therefore dismiss his appeals against conviction.

Admissibility of DSS McNaughton’s evidence

[37] Unlike the first two, this ground of appeal has not previously been addressed, or at least not directly so. It is therefore necessary to deal with it in a little more detail.

[38] Following a voir dire on the first day of trial, Downs J issued a ruling on the admissibility of DSS McNaughton’s evidence. The Judge began by recording that:

[2] Mr Hines does not object to the witness’s related expert evidence about motorcycle gangs or the Head Hunters gang. Rather, his objection is confined to the witness's statement of opinion:

(a) Mr Hines was at least a co-leader in the relevant period with another gang member, Wayne Doyle.

(b) The East Chapter operated under the auspices of a committee comprised of Mr Doyle and Mr Hines.

[3] Mr Holland accepts DSS McNaughton has the requisite experience and expertise to give more general evidence about the Head Hunters gang. But he submits the two aspects above lack the requisite evidential foundation, and the prejudicial effect of the evidence outweighs its probative value.

[39] The Judge then noted the nature of the Crown case against Mr Hines and the centrality to it of the proposition that he directed the offending in his capacity as a leader of the East chapter. He therefore accepted the proposed evidence was both contextually and directly relevant. He then held that the probative value of the evidence outweighed its prejudicial effect. In that regard, he said:

... Expert evidence in connection with gangs has the potential to excite prejudice, as does evidence an individual is the leader of a gang. However, the relevance of the evidence also demonstrates its probative value. Less Delphically, evidence that Mr Hines is the East Chapter’s leader bears directly on the contention he directed the offending in question. Or, to borrow the language of William Young J in Mahomed v R, the prejudicial effect of the evidence is 'conterminous with its relevance' and reveals nothing about the defendant which is not directly germane to the case against him. Judicial direction will cure any remaining risk.

[40] We have already dealt with the discrete issue of prejudice above.

[41] In any event, as the Judge noted, the real battleground in relation to DSS McNaughton’s evidence was whether it was substantially helpful. On that issue, we set out his reasoning in full:

[11] As observed, DSS McNaughton proposes to testify Mr Hines was a leader or co-leader of the East Chapter of the Head Hunters gang between 2013 and 2015. The evidence is based in part on the officer’s knowledge and experience of the Head Hunters gang, and this Chapter in particular. In this period, the witness was the Detective Sergeant in charge of a Gang Unit which targeted the Head Hunters gang. The officer's earlier roles buttress his expertise and this aspect of his testimony, including intelligence roles in connection with motorcycle gangs and the Head Hunters gang.

[12] The proposed evidence is also based on the witness’s personal experience. DSS McNaughton testified he dealt with Mr Hines or Mr Hines in association with Mr Doyle between five and 10 times as the apparent leader or leaders of the Chapter. The witness testified gang culture is such that discussion with a Police officer on the part of a gang member is impermissible unless the member has permission to speak to the Police. So, when an issue arose which required attention on the part of the Police in connection with the East Chapter, DSS McNaughton would speak to either Mr Hines or Mr Doyle as the apparent leader of the Chapter. The witness said he preferred dealing with Mr Doyle as he found Mr Doyle to be more accommodating. He said his dealings with Mr Hines, which commenced in 2013, were noticeably different from those in connection with Mr Doyle.

[13] Under cross-examination, DSS McNaughton agreed he made no notebook entries or other documentation in relation to his meetings with either Mr Hines or Mr Doyle. The officer said he did not do so because the associated Police inquiries were unofficial, and if he documented the exchanges, that could preclude further dealings with Mr Hines or Mr Doyle, or the East Chapter more generally. In short, the witness said it was more important to have a line of communication with the Chapter and its leaders than to document that fact. He was adamant the meetings occurred, and gave an example of one in the wake of a (high-profile) murder of a member of the Head Hunters.

[14] Mr Holland submitted the absence of any documentation and limited recollection of the witness in relation to any of the meetings deprived the officer’s evidence of its requisite foundation.

[15] I am satisfied there is a sufficient evidential foundation for the officer's opinion. The officer’s explanation for not documenting these communications is one the jury could accept. Whether the jury does so is for it. Moreover, the objection is more a matter of weight rather than admissibility. That too is a jury issue. Importantly, the witness’s evidence loses none of its cogency because the witness cannot recall the contents of the specific discussions with Mr Hines (or Mr Hines and Mr Doyle) beyond that in connection with the murder of a Head Hunters gang member. The evidence is not adduced because of what was said. It is adduced because whatever was discussed, Mr Hines was held out - or held himself out - as a leader of the Chapter. Nor will cross-examination on the absence of record keeping expose Mr Hines to the introduction of otherwise prejudicial evidence about him.

[16] The Crown also seeks to adduce evidence from DSS McNaughton that material decisions of the East Chapter are made by a committee comprising Mr Doyle and Mr Hines. Under cross-examination, the witness said it was his 'impression' the committee was comprised of these two members. I asked the officer whether his evidence on this topic had anything to support it beyond a particular event in which Mr Hines and Mr Doyle said the decision in question (whether Police could speak to members of the gang in connection with the homicide inquiry) would be made by 'the committee'. The officer said that was the only basis on which he offered that piece of testimony.

[17] Mr Northwood responsibly accepted in this context, a witness may not give evidence of his or her impression. It follows the officer may not offer evidence about the apparent composition of the committee. The officer may, however, refer to the existence of the committee and the particular occasion or occasions on it was referred to by Mr Hines, Mr Doyle, or both.

[42] In light of the latter part of this ruling, we can reject without further discussion the second limb of this ground of appeal. Downs J made it clear that DSS McNaughton was not permitted to proffer an opinion that the East chapter operated under the auspices of a 'committee' comprised of Mr Doyle and Mr Hines. Rather, he said that he should limit his evidence to those factual matters which might give rise to such an inference. Based on our own review of the evidence that DSS McNaughton subsequently gave, he did not transgress that ruling.

[43] As to the first limb - that Downs J should not have permitted DSS McNaughton to express his opinion that Mr Hines and Mr Doyle were (at least) coleaders of the East chapter - we agree with the Judge that the real issue was not one of admissibility but one of weight for the jury. Mr Hines’ status as gang leader was relevant and the officer’s evidence about it was principally evidence of fact, not opinion; it dealt with his own interactions with Mr Hines when dealing with the gang and as such was plainly admissible. He was also qualified to offer an opinion, based on those interactions and his wider knowledge of gangs, that Mr Hines was the leader. The Judge was not wrong to conclude that the opinion was substantially helpful and so admissible; he made it clear that the jury should not defer to that opinion but decide for themselves. His summing up made it clear that the evidence was disputed. And in any event, we note that the writer of Mr Hines’ Provision of Advice to Courts report recorded that:

He [Mr Hines] acknowledged during the course of the interview that he is the 'boss' in reference to his status with the Head Hunters gang but also made it clear that he did not have absolute control over the actions current matters are a case in point.

(Emphasis added.)

[44] Regardless of whether his control was absolute, that acknowledgment serves to confirm our view that there was no error here.

Failure to warn

[45] In his Bench Note dated 10 February 2017, Downs J recorded that:

[2] I again warned the jury against prejudice in relation to gangs immediately prior to the evidence of Detective Senior Sergeant McNaughton.

[46] This aspect of the appeal appears to be based on the fact that a transcript of the warning given was not available. It was not in the case on appeal. It was not, however, suggested that the warning was not given. And the adequacy more generally of the warnings about prejudice have been discussed above. There is nothing in this ground.

[47] Nor can we accept the related criticism that the Judge was wrong to interrupt (then) counsel for Mr Hines in the course of his opening statement. The relevant exchange was as follows:

Holland: You would have heard yesterday the Crown start their comments by saying this case is not a case about gangs, and yet they then proceeded to mention gangs repeatedly through the rest of their very lengthy opening comments. The reality is ladies and gentlemen whatever cautionary comments the Crown started with yesterday, they’re going to push this gang narrative as much as they can.

The Court: Mr Holland, I have interrupted you once. I have asked you to confine this to an opening statement of issues. You have helpfully identified those. I have directed the jury and will do so again in relation to prejudice.

[48] Section 107(2) of the Criminal Procedure Act 2011 makes it clear that the purpose of any (initial) opening statement for the defence is limited, as the Judge said, to the identification of issues. The Judge was right to exercise control over the scope of Mr Holland’s statement.

Conclusions (conviction appeal)

[49] None of the grounds of appeal against conviction disclose any error on the part of the Judge. The conviction appeal must be dismissed.

Sentence appeal

[50] As noted at the beginning of this judgment, Mr Hines was sentenced to 18 years and six months’ imprisonment with an MPI of eight years and four months. That sentence was made up of the following components:[27]

(a) a starting point of 16 years’ imprisonment on the lead manufacturing charge;

(b) an uplift of three and a half years for the 'storage unit' offending, which took into account the methamphetamine found in the van inside the unit;

(c) a further uplift of six months for Mr Hines’ criminal history;

(d) a discount of 18 months for health issues; and

(e) an MPI of 55 per cent (ten years[28]) reduced to 45 per cent (eight years and four months) for health issues.

[51] The following grounds of appeal were originally advanced against this sentence:

(a) The Judge’s starting point was too high.

(b) The Judge wrongly calculated the amount of methamphetamine manufactured in April 2015 as one kilogram when there is insufficient evidence to justify such calculation. His starting point based on that weight is therefore untenable.

(c) The Judge gave insufficient consideration to and discount for Mr Hines’ medical condition and in particular the degree of extra suffering that the condition would result in from a sentence of imprisonment.

(d) The Judge failed to give consideration to s 8 of the New Zealand Bill of Rights Act 1990 (NZBORA) which guarantees the right to life.

[52] In light of the earlier judgment, Mr Krebs rightly conceded that the first two were untenable and we do not address them further. The remainder of this judgment therefore concerns only with Mr Hines’ medical issues and the new ground of appeal that has arisen as a result of the earlier judgment. In light of our conclusions on the former point we do not consider it necessary to consider s 8 of the NZBORA separately. The latter point simply concerns achieving parity with the reduction in sentence given to Messrs T Maaka and Sadler. We deal with that first.

Double counting

[53] In the earlier judgment, the Court found that there had been an element of double counting in the uplift imposed for the 'storage unit' offending by Messrs T Maaka and Sadler. The Court explained its thinking in the context of Mr Maaka’s appeal as follows:[29]

[146] We are of the view that most of the items found in the storage unit, although associated with the manufacture of methamphetamine, were not part and parcel of the manufacture on the evening of 18 April 2015 and or morning of 19 April 2015. However, the Judge clearly held that the 136.5 grams of methamphetamine found in the van was the residue of the methamphetamine manufactured on the earlier dates. Unlike Mr Edwardson, Mr T Maaka was charged with that manufacturing. Accordingly, to increase his sentence due to possession of that same methamphetamine would amount to double counting. The remaining items, being firearms, equipment, precursor substances and ammunition, were separate although related offending. They did add to Mr T Maaka’s overall culpability.

[147] We are of the view that the uplift of three years was too high compared to the four-year starting point adopted in respect of Mr Edwardson. It is appropriate to compare the two in order to avoid disparity in sentences between co-offenders. We accept Mr T Maaka’s culpability for the storage unit offending was higher than that of Mr Edwardson given Mr T Maaka was more senior in the Head Hunters. However, in relation to Mr T Maaka, the Judge should not have included the possession of methamphetamine in the uplift. Further, a reduction for totality is needed to reflect the relationship between the storage unit charges and the earlier manufacture offending, in particular the charges for possession of materials in connection with the manufacture of methamphetamine. Methamphetamine manufacture almost always includes significant commerciality and, accordingly, precursor materials and equipment. To some extent this is inherent in the penalty for manufacture. The important question is the extent to which the items found in the storage unit, excluding the methamphetamine, added to Mr T Maaka’s overall culpability. We consider an uplift of 18 months adequately reflects his additional culpability.

[54] For the same reasons, the Court also gave Mr Sadler an 18-month reduction in his sentence.[30]

[55] Mr Hines received an uplift of three and a half years for the storage unit offending. The extra six months reflected the Judge’s view of his higher culpability overall. But in our view, parity with Messrs T Maaka and Sadler requires that part of his sentence similarly be reduced by 18-months. Such a reduction still reflects the Judge’s view of Mr Hines’ culpability. It would result in an end sentence of 17 years’ imprisonment. Absent an MPI, that would mean that he would be eligible for parole after serving five years and eight months’ imprisonment.

Medical matters

[56] There has never been any dispute that Mr Hines is in poor health. Nor can there be any dispute that it was taken into account by Downs J in sentencing. The Judge relevantly said:[31]

[19] You are unwell. You have type two diabetes and end stage renal failure. You also suffer heart disease. You require regular dialysis. That meant we did not sit every second afternoon during the trial.

[20] Ill-health can operate to mitigate a sentence, particularly when the defendant would suffer more in prison because of their condition. You are best treated with dialysis every second day. But at the moment that regime is limited to Mondays, Wednesdays and Fridays, and is not available on the weekends. It may be some weeks, perhaps even months, before a second day regime can be accommodated within prison. In any event, you find travelling the short distance between the prison and hospital tiring. That is unsurprising. I am informed that your incarceration means it is unlikely you will be eligible to receive a kidney transplant. That is likely to affect your lifespan.

[21] Mr Holland seeks a significant deduction having regard to these circumstances. He invites my attention to a period of at least two years. Mr Northwood accepts that you should be afforded some 'latitude', 'but not very much'.

[22] The law in this area suggests my discretion is reasonably broad. There are competing objectives. On the one hand, compassion suggests a need for a significant adjustment. On the other, deterrence, denunciation and community protection also remain relevant. You sat atop an organisation which made a very large amount of methamphetamine, and which intended to make more. You also possessed a cache of firearms and ammunition. In these circumstances I settle upon a discount of 18 months’ imprisonment.

[23] There are no other mitigating features.

[24] The Crown seeks a minimum period of imprisonment of at least 50 per cent of your finite term. Minimum periods are common in the context of serious drug offending, but that is not decisive. The test is whether parole eligibility after one-third of your sentence would be insufficient for the purposes of accountability, denunciation, deterrence and community protection.

[25] I am satisfied a minimum period of imprisonment is necessary having regard to the nature and seriousness of your offending, your apex role in an organised criminal enterprise, your criminal history and risk of harm to the community. However, your ill-health requires some downward adjustment of the otherwise applicable period. I settle upon 45 percent. But for your illhealth, I would have imposed a minimum period of 55 percent.

[57] In advance of the hearing of Mr Hines’ appeal, affidavits relating to Mr Hines’ health issues and their management in prison were sworn by Ms Shelley Scott, who is a registered nurse and the Health Care Manager at Auckland Prison, and Mr Hines himself. Both witnesses were cross-examined at the hearing.

[58] Much of the content of Mr Hines’ evidence simply confirmed the information that had been before Downs J at the time of sentencing. In his first affidavit (sworn in August 2017) he said:

(a) Prior to his imprisonment, he had been on dialysis four times a week, five hours a day since 2012.

(b) Since his incarceration he gets one day less dialysis every fortnight and each session lasts only four to four and a half hours, rather than the optimum five.

(c) Use of the dialysis machine is complicated and while at home he needed his son’s help to use it.

(d) While using the machine, he often gets dizzy and nauseous and has, on occasion, had seizures and black outs. When that had occurred at home, his son would then take him to the nearby hospital.

(e) In prison, he has to set up the dialysis machine himself which he finds very stressful. It is also made more difficult by the fact that he is blind in one eye and has limited sight in the other. Staff are not trained in the operation of the machine sufficiently to be of much assistance.

(f) He has to place the dialysis needle in his own arm which can be difficult. His son used to do this for him.

(g) He is concerned about hygiene because the bins containing the used tubes and hoses are often not emptied for three weeks. The bins smell. An infection could be fatal.

(h) On one occasion in prison his arm would not stop bleeding when he came off the machine because he was given the wrong dosage of his blood thinning medication. The prison nurses did not know what to do and it was four and a half hours before he was taken to hospital.

(i) He is on 22-hour lockdown which makes it impossible to maintain his exercise regimen.

[59] In his second affidavit (sworn in April 2018) he reiterated his earlier concerns and said further:

(a) He remains on 22-hour lockdown in a maximum-security unit which is old and in poor condition, despite having being assessed as being a low/medium security risk. This is because the dialysis machine is in the maximum-security unit.

(b) The prison food is too salty which is bad for his kidney problems and diabetes.

(c) There are people who have offered to donate a kidney to him but his imprisonment means he is not eligible to be on the transplant list.

[60] In relation to the last point Mr Hines clarified orally that while he had family members who were willing to donate a kidney to him, none had yet been tested for a match.

[61] Mr Hines’ son also swore an affidavit in which he confirmed what his father says about the complexity of operating the dialysis machine.

[62] Ms Scott said that, in general terms:

(a) Corrections are funded to provide primary health care to prisoners. Every prison has a Health Centre. Provision of primary health care is provided either in the Health Centre or within the prison.

(b) Section 75 of the Corrections Act 2004 requires Corrections to provide a level of medical treatment that is reasonably necessary, and reasonably equivalent to the standard of care available to the public. The requirement to facilitate hospitalisations and day procedures at specialised medical facilities is entirely routine.

(c) For treatment purposes, a prisoner is permitted to leave prison, and always with a prison escort. Prisoners attend hospitals, outpatient clinics and specialists in this way. Such releases are regulated by reg 77 of the Corrections Regulations 2005.

(d) Provision of secondary and tertiary health care services is the responsibility of the local District Health Board. The Prison Health Service refers prisoners requiring specialist care and treatment to these services under the same eligibility criteria as any other member of the public. Corrections work closely with and are guided by secondary and tertiary specialist health services advice in the management and treatment of all prisoners who have complex needs.

(e) There is no blanket ban on transplants for prisoners.

[63] More specifically, as far as Mr Hines is concerned, Ms Scott deposed:

(a) On his arrival at prison Mr Hines was noted as having the following medical conditions: 'end stage renal failure, fluid overload, cholestatic hepatitis, gout, Type 2 diabetes mellitus, ischaemic cardiomyopathy, atrial fibrillation'.

(b) A comprehensive care plan was formulated around his health needs. Nurses order his dialysis supplies each month.

(c) Health staff received advice about Mr Hines’ diet from a dietician at the Waitemata District Health Board (WDHB) on his admission to prison. That information was relayed to the prison kitchen.

(d) Prior to his arrival there were no dialysis machines at Auckland Prison so one was installed by the WDHB for Mr Hines’ use. Mr Hines is responsible for maintaining the dialysis machine, as he was at home.

(e) WDHB provided a haemodialysis technician to be on site during the first few weeks of Mr Hines’ arrival at Auckland Prison.

(f) Mr Hines was advised by the haemodialysis technician to clean the dialyzer monthly, by changing the filters and also changing a particular filter every three months. Mr Hines confirmed he could do it and that he had been doing it for the past couple of years at home.

(g) The haemodialysis technician trained the Nurse Team Leader so that she could train the nurses. The nurses were taught how to switch the dialyzer on, and off, in an emergency. They were taught how to run the disinfection cycle to facilitate treatment on Mondays after the weekend.

(h) The level of training given was aimed at ensuring that the nurses could support Mr Hines to continue to 'self-care' and perform his own dialysis. This included how to clamp Mr Hines’ intrafistular system in the event of an emergency and to follow routine emergency procedures.

(i) Nurses check on Mr Hines hourly during his dialysis and ensure he is keeping the required notes. Mr Hines has a call bell which rings through to a pager held by a nurse throughout the dialysis process.

(j) A medical waste bin is used for disposing of all dialysis waste. It has a plastic liner and is collected every three weeks by the medical waste company contracted to the prison. This can be made more frequent if necessary. The dialysis room is cleaned two to three times a week by the health unit cleaner. The chair linen is washed weekly.

(k) Mr Hines can complete a health request form if he has concerns about his exercise levels.

(l) Although dialysis presently takes place in the East Wing at Auckland Prison this does not mean that dialysis patients are required to live in that wing. There is no health reason requiring Mr Hines to be housed there.

(m) In any event, East Wing will be closing when the new prison opens in the next few months.

(n) Mr Hines is under the care of a number of specialists for his chronic health conditions. Specialist appointments are made for him as required. On occasion, he has declined to attend external appointments with his specialist team.

[64] As well as the evidence of Mr Hines and Ms Scott, we had before us a copy of information provided to his lawyer, Mr Holland, from a nephrologist, Dr Michael Collins, prior to sentencing. Relevantly he stated:

At the present time, Mr Hines has been suspended from the transplant list due in part to his detention. There had also been concerns about his fitness from a medical perspective (cardiac issues) but recently he has been stable from that perspective so I suspect if we were to reconsidered for being re-activated [sic] that would not be a barrier.

Our usual process is that patients who are sentenced will have their case discussed at a regular transplant committee meeting and a decision made to de-list them. If in future the patient is released he can be reconsidered for transplant listing, and his waiting time (a component of how kidneys are allocated) will be back dated to his original listing date.

From the medical perspective, it is well documented that transplant has a significant positive effect on survival over dialysis. In general terms, the rate of patient survival after 5 years on dialysis equates to around 50%, compared with over 90% for patients who get a transplant. This is without commenting specifically on Mr Hines' situation, but I can say pretty categorically that delaying a transplant increases the risk of dying for most patients on dialysis. I can send you links to further information on this if you would find it useful.

Discussion

[65] It is important to record at the outset that we are concerned here with an appeal against sentence, not an application for judicial review of the quality of health care provided to prisoners such as Mr Hines. Nor are we in a position to second guess either operational or clinical matters.

[66] But there remains s 8(h) of the Sentencing Act 2002. Its potential operation in cases such as this was discussed by this Court in R v Luce.[32] In that case, as here, the appellant had kidney failure requiring dialysis. The Court said:

[22] Section 8(h) preserves the principle of mercy on sentence; a principle of long standing: R v Wihapi [1976] 1 NZLR 423, 424, CA. Nevertheless, it is a principle to be given effect in such cases as these with some caution. The fear has always been that ill health could become a licence to offend and avoid accountability: R v Verschaffelt [2002] NZCA 244; [2002] 19 CRNZ 638; R v Pomana [2007] NZCA 138; R v KGB [2007] NZCA 292; R v Bernard [1997] 1 Cr App R(s).

[23] One consideration has always been whether ill health is able to be managed sufficiently within the prison, to ensure that the sentence imposed is not disproportionately severe. There are also remedies given by statute. The Chief Executive may release a prisoner ‘for compassionate or humane treatment’: s 66(2)(a)(ii), Corrections Act 2004. Ultimately, the Parole Board is able to release a prisoner early if he or she is ‘serious

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ly ill and unlikely to recover’: s 41, Parole Act 2002. [24] That said, the prerogative of mercy, now expressed in s 8(h), remains. In Verschaffelt, for instance, this Court increased a discount from a proper sentence from one-third to one half, in the main to take account of the disproportionate severity of that sentence, given the appellant’s age and state of health. Another such instance is R v Gallagher (1994) 9 CRNZ 421. [25] Where extreme ill health is coupled with a very low life expectancy, as is the case here, a more than usual discount can be justified. As Lamer CJ said in R v M (CA) (1996) 1 SCR 500, at [74]: ... the sentencing judge should be mindful of the age of the offender in applying the relevant principles of sentencing. After a certain point, the utilitarian and normative goals of sentencing will eventually begin to exhaust themselves once a contemplated sentence starts to surpass any reasonable estimation of the offender’s remaining natural life span. [67] The Court allowed Mr Luce’s sentence appeal, reduced his sentence and declined to reimpose an MPI, saying: [26] That is our own conclusion in this case. Mr Luce is in such ill health and his life expectancy is now so palpably short that the usual purposes and principles of sentence have become increasingly notional, and the difficulties inherent in a sentence of imprisonment so palpable that, despite the statutory remedies, that should be recognised in the ultimate sentence. It should be reduced by two years. [68] And so we turn to the present case. Mr Hines is now 65 years old. If, for the reasons already given, his end sentence is reduced to 17 years’ imprisonment, then an MPI of 45 per cent would equate to a little over seven and a half years. He would therefore be in his early seventies before he was eligible to be released. He has already been on dialysis for six years and we note what Dr Collins said about survival rates after five. Relatedly, we also accept that the possibility of a transplant (were a kidney to become available) while he remains in prison is remote. The imposition of an MPI therefore has a potentially direct effect on Mr Hines’ life expectancy. On the basis of the (somewhat limited) medical information before us it seems that the chances of him completing the minimum period seem far from good. [69] And while, on the evidence, it seems Mr Hines’ medical conditions are managed adequately in prison, it cannot be said that the care he receives is equivalent to that which he received in the community; the reduced frequency and duration of his dialysis treatment speaks for itself. So do the (at best) very limited transplant opportunities. [70] So while Downs J recognised Mr Hines’ health issues in the sentencing discounts he gave, we are of the view that the appropriateness of an MPI requires revisiting on appeal. For the reasons just given, we consider that Mr Hines’ medical circumstances are such that the need for specific deterrence is reduced and, in light of s 8(h) of the Sentencing Act, an MPI is not warranted. [71] As noted earlier, we do not consider it necessary to consider any issue about s 8 of the NZBORA separately. Result [72] The appeal against conviction is dismissed. [73] The appeal against sentence is allowed: (a) the sentence of 18 years and six months’ imprisonment is quashed and a sentence of 17 years’ imprisonment is substituted; and (b) the minimum period of imprisonment of eight years and four months’ is quashed. --------------------------------------------------------------------- [1] R v Hines [2017] NZHC 769 at [26]. [2] Mr Hines’ appeal was not heard then due to his health issues. [3] Edwardson v R [2017] NZCA 618. [4] Messrs T Maaka and Sadler. A third co-defendant, Mr Vijn, also successfully appealed his sentence, but the Court’s reasons for allowing his appeal are not relevant to Mr Hines’ appeal. [5] Edwardson, above n 3, at [146]–[147] and [161]–[163]. [6] At trial Mr Sun’s convictions for other drug offences were the subject of an agreed statement under s 9 of the Evidence Act 2006. [7] DNA belonging to another person was also found on the bandana. [8] R v Hines, above n 1, at [1]. [9] At [2]. [10] At [8]. [11] At [5]. [12] At [6]. [13] At [7]. [14] At [10], citing R v Fatu [2005] NZCA 278; [2006] 2 NZLR 72 (CA). [15] At [10]. [16] At [12]. [17] At [16]. [18] At [17]. [19] At [19]. [20] At [20]. [21] At [22]. [22] At [25]. [23] At [26]. [24] Edwardson v R, above n 3. [25] At [34]. [26] Edwardson v R, above n 3. [27] R v Hines, above n 1, at [12], [16]–[18], [22] and [25]. [28] 55 per cent of 18 years and 6 months is ten years and two months but the maximum term of an MPI is ten years pursuant to s 86(4) of the Sentencing Act 2002. [29] Edwardson v R, above n 3. [30] At [162]. Mr Edwardson did not get a reduction because he was not involved in the manufacturing. Rather, the index charges related to the storage unit offending. [31] R v Hines, above n 1. [32] R v Luce [2007] NZCA 476.
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