In the Court Of Appeal of New Zealand
CA54/2010
[2010] NZCA 365

BETWEEN	JAYDE WILLIAM CHARLES HIGGINS
Appellant

AND	THE QUEEN
Respondent

Hearing:	10 August 2010

Court:	Chambers, Rodney Hansen and Heath JJ

Counsel:	W N Dollimore for Appellant
M D Downs for Respondent

Judgment:	11 August 2010 at 4 pm

JUDGMENT OF THE COURT	

The appeal is dismissed.

REASONS OF THE COURT

(Given by Chambers J)
Supply of methamphetamine
[1]	On 2 April last year, police stopped Jayde Higgins, the appellant, while he was driving his car.  He scarpered, but a police dog tracked him down.  Police found in the car a small black satchel containing $2,740 cash, three Ziploc bags containing methamphetamine, a set of electronic scales, a glass pipe for smoking methamphetamine, and a number of small clean Ziploc bags of a type used to sell methamphetamine.  Mr Higgins admitted ownership of the satchel and its contents.
[2]	Mr Higgins faced two charges.  The first count was a representative count of supplying the class A controlled drug methamphetamine to others.  This count was based on inferences to be drawn from the presence of the large quantity of cash, together with drug paraphernalia.  Mr Higgins’s defence to this count was that he was a personal methamphetamine user, not a dealer.  The cash, he asserted, came from legitimate sources.  
[3]	The second count focused on the three Ziploc bags containing methamphetamine.  The Crown charged that Mr Higgins was in possession of methamphetamine for the purposes of supply.  Mr Higgins admitted possession but asserted the methamphetamine was for his personal use.  
[4]	The jury found him guilty on both counts.  Judge Spear, the trial judge, subsequently sentenced Mr Higgins to two years nine months’ imprisonment.
[5]	Mr Higgins now appeals against his conviction on count 2.  He also appeals against the sentence.  
Issues on the appeal
[6]	There is only one issue on the appeal against conviction.  It is: should the verdict on count 2 be set aside as unreasonable?  
[7]	On the sentence appeal, the single issue is whether the sentence was too long.  Mr Dollimore, for Mr Higgins, submits the sentence should have been only two years’ imprisonment.  
Should the verdict on count 2 be set aside as unreasonable?
[8]	Count 2, as we have said, turned on the contents of the three Ziploc bags found.  The first contained only traces of methamphetamine.  No one asserts that the contents of that bag could have been supplied to anyone.  The second bag contained 92 mg of methamphetamine (or, more accurately, of a methamphetamine mixture).  The third bag contained 316 mg.  It is the methamphetamine in those two bags which the Crown submitted was available for and intended for supply.  
[9]	Mr Dollimore submits that the quantities found in these two bags were so small that a verdict of guilty of possession for supply was unreasonable.  Counsel accepted that a verdict was unreasonable when, “having regard to all the evidence, no jury could reasonably have reached [it] to the standard of beyond reasonable doubt”.  In making the submission that the verdict on count 2 was unreasonable, Mr Dollimore relied principally on some answers Detective Daryl Evans gave under cross-examination.  Detective Evans agreed that a quantity that small could be consistent with personal use.  Mr Dollimore submitted there was “no evidence that the appellant had that methamphetamine in his possession for supply”.  
[10]	We cannot, with respect, accept that submission.  This takes Detective Evans’s evidence out of context.  In his evidence-in-chief, the detective had explained that methamphetamine was commonly sold in three different quantities.  The smallest was a “point” or 100 mg, which sold on average for $100.  The second was a gram, which sold on average for between $750 and $1,200.  The third was an ounce, or 28-30 g.  An ounce commonly sold for between $7,000 and $16,000.  So the second bag had effectively a point, the third three points.  Taken together, those were saleable quantities.  
[11]	Further, in deciding Mr Higgins’s purpose, the jury was required to consider all the evidence.  This evidence convinced them that he had been dealing in methamphetamine, a verdict to which no exception is taken.  Obviously, in the recent past, Mr Higgins had had other methamphetamine in his possession, which he had sold and converted into the large amount of cash found in the car.  The jury were fully entitled to conclude that these four points (or some of them) were what remained to be sold.  That conclusion was not only open to the jury; it was entirely reasonable and the one we would have made based on the evidence before the Court.
[12]	We dismiss the appeal against conviction.  The verdict was not unreasonable.  
Was the sentence too high?
[13]	The Judge placed Mr Higgins’s offending within band 1 of the guideline judgment on methamphetamine dealing, R v Fatu.  Band 1 covered “low-level supply (less than 5 g)” and suggested a normal starting point of two years’ to four years’ imprisonment.  The Judge effectively pitched it at two years nine months’ imprisonment.  He did not apply an uplift on account of Mr Higgins’s earlier convictions for cultivating cannabis and possessing a bong for smoking cannabis.  There were no mitigating circumstances.  
[14]	Mr Dollimore submitted that the starting point should have been right at the bottom of that range.  But he advanced neither reasons nor case authority for that proposition.  We do not know whether Mr Higgins normally supplied points or grams.  Whichever it was, the sum of $2,740 would represent the sale of about 3 g.  To that would be added the methamphetamine he had not yet sold – a further 400 mg.  The total quantity was therefore in the vicinity of 3.4 g.  Both the starting point and the end sentence were, when viewed in that light, unexceptional.
[15]	We also dismiss the appeal against sentence.  

Solicitors: 
Crown Law Office, Wellington, for Respondent