IN THE Court of appeal OF new Zealand

I TE KŌTI PĪRA O AOTEAROA	
 CA80/2019
 [2020] NZCA 255

	
BETWEEN	
MARK GRAHAM ROULSTON
Appellant	
	
AND	
THE QUEEN
Respondent	

Hearing:	
20 May 2020	

Court:	
Cooper, Duffy and Edwards JJ	

Counsel:	
R M Mansfield for Appellant
M Davie for Respondent	

Judgment:	
25 June 2020 at 10 am	

JUDGMENT OF THE COURT

A	The appeal against sentence is allowed. 
B	The sentence of seven years and six months’ imprisonment for manufacturing methamphetamine is set aside.  A term of six years’ imprisonment is substituted. 
C	The sentences imposed by Judge Rollo on the other offences stand. 
D	All sentences are to be served concurrently. 
____________________________________________________________________

REASONS OF THE COURT

(Given by Duffy J)
[1]	The appellant, Mr Mark Roulston, was sentenced to seven years and six months’ imprisonment for manufacturing methamphetamine.  He appeals against this sentence on the ground it is founded on an erroneous view of the quantity of methamphetamine he manufactured and for other reasons which make the sentence manifestly excessive.
[2]	This sentence was the lead sentence in a group of concurrent sentences that followed his pleading guilty in the District Court to drug and drug related offending.  
Background
[3]	Around 6.30 am on 27 September 2016, the police executed a search warrant on Mr Roulston’s address in Te Puke.  There, they located a metal condenser, a hot plate, a parr bomb, iodine, caustic soda, electronic scales, $23,240 in cash, a shotgun modified so it could be carried with one hand, and 37.6 grams of methamphetamine.  He was arrested and charged with: 
(a)	manufacturing methamphetamine;
(b)	possession of methamphetamine for the purpose of supply; 
(c)	supplying methamphetamine; and
(d)	unlawful possession of a pistol. 
[4]	The charges were framed to encompass the manufacture and supply of methamphetamine between 1 January 2015 and 27 September 2016.  The Crown maintained that during this time Mr Roulston manufactured at least eight ounces (224 grams) of methamphetamine.  
[5]	Mr Roulston was interviewed by police.  During the interview he admitted to manufacturing methamphetamine and said that some was for his personal use and the rest he supplied to his partner and to “a handful” of associates.  The implications of other relevant parts of the interview are disputed.  We shall return to this later.
[6]	Mr Roulston has always accepted that his admissions during the interview established the charged offences, but he disputes manufacturing the quantity of methamphetamine the Crown claims.  This resulted in him entering pleas of guilty to the charges followed by a disputed facts hearing before Judge Mabey QC. 
[7]	On 20 December 2018, Judge Mabey determined that Mr Roulston had manufactured eight ounces of methamphetamine.  There is no right of appeal against a decision from a disputed facts hearing; a challenge to the decision must be brought as an appeal against the sentence that is imposed in reliance on the outcome of the disputed facts hearing.   Accordingly, Mr Roulston was obliged to proceed to sentencing on the basis of the facts as found by Judge Mabey.  
[8]	On this basis he was sentenced by Judge Rollo to seven years and six months’ imprisonment on the manufacturing charge.  On the charges of possession of methamphetamine for supply and supply of methamphetamine Mr Roulston was sentenced to five years’ imprisonment for each offence, and on the charge of unlawful possession of a firearm he was sentenced to six months’ imprisonment.  All sentences were concurrent. 
The disputed facts decision 
[9]	By agreement the disputed facts hearing took place on the papers.  Judge Mabey had recourse to Mr Roulston’s police video interview, the transcript of the interview and counsel’s submissions.
[10]	Quantity is a valuable factor when setting the starting point of a sentence for manufacturing methamphetamine.  For sentencing purposes if the prosecutor asserts a greater quantity than an offender accepts this quantity is treated under s 24 of the Sentencing Act 2002 as an aggravating fact, which the prosecutor must therefore prove beyond reasonable doubt.  
[11]	Mr Mansfield for Mr Roulston submitted that Mr Roulston’s answers as to the frequency of manufacturing were so vague and uncertain they could not support any safe inference as to the required standard of proof.  The Crown contended the interview supported the inference that there was manufacturing of two ounces at three monthly intervals, which could have produced a total of almost 14 ounces over the charging period.  Thus, a reduction to eight ounces, as alleged in the summary of facts, adequately allowed for any uncertainty as to frequency.
[12]	The Judge considered it was unrealistic to restrict the quantity of methamphetamine to two ounces (which was the quantity Mr Roulston would accept) for the purposes of sentencing.  He was satisfied Mr Roulston could produce up to two ounces of methamphetamine per manufacture, and that the real issue for determination was how many times manufacturing occurred during the charging period.  By a process of inferential reasoning the Judge arrived at the estimate of eight ounces, which he considered to be a safe but conservative estimate.
[25] 	Eight ounces at two ounces per cook requires four cooks.  During the period of the charge that would require a gap of five months between cooks.  That is well within Mr Roulston's reference to "few months" and adequately allows for any uncertainty.
[26]	I can draw a valid inference from the information available.  The information justifies the inference that the Crown submits I can make and I do so.
[27] 	For sentencing purposes Mr Roulston has manufactured eight ounces of methamphetamine.
The sentencing decision
[13]	Judge Rollo sentenced Mr Roulston on the basis he had manufactured eight ounces of methamphetamine.  The Judge accepted that addiction underlay the supply to others, however, the presence of nearly 38 grams of methamphetamine and $23,240 at Mr Roulston’s address was enough to indicate there was a degree of commerciality involved in the offending.   The manufacturing offence was taken as the lead offence.  Applying the guideline judgment of R v Fatu, the Judge placed the offending in band two, which covers offending warranting a starting point of between four and eleven years’ imprisonment.  The Judge adopted a starting point of eight years’ imprisonment.  This was uplifted by one year to reflect the additional charges of possession and supply, a further nine months to reflect the arms charge, and an additional three months to take account of Mr Roulston’s previous drug related convictions.  Altogether, this came to 10 years’ imprisonment. 
[14]	The dispute at sentencing focussed on the deductions that were to apply.  The Judge applied, in total, a deduction of 25 per cent, which incorporated 7.5 per cent for guilty pleas, 7.5 per cent for personal circumstances and 10 per cent for cooperation with the authorities. The resulting deduction of two and a half years reduced the lead sentence (for the manufacturing offending) to seven years and six months’ imprisonment.
The appeal
[15]	Mr Roulston asserts the following grounds of appeal:
(a)	Judge Mabey erred in determining that the quantum of methamphetamine manufactured by Mr Roulston was eight ounces. 
(b)	The global starting point of eight years’ imprisonment for the manufacturing offending was manifestly excessive. 
(c)	The reduction of 7.5 per cent to take account of the fact the offending was driven by addiction was insufficient. 
(d)	The end sentence of seven years and six months’ imprisonment was manifestly excessive. 
Submissions on appeal 
The disputed facts decision
[16]	Mr Mansfield submits there is no proof beyond reasonable doubt that over the charge period Mr Roulston manufactured eight ounces of methamphetamine.  Mr Mansfield argues that during the interview Mr Roulston made only rough estimates as to how much methamphetamine he manufactured at any one time, and he spoke in very general terms when estimating the frequency at which he would manufacture methamphetamine.  Even so, he made it clear the outcomes were dependent on a range of variables.  Thus, there was no basis for Judge Mabey to determine that if one manufacture was unsuccessful Mr Roulston was likely to replace it with another, especially given that Mr Roulston says in the police video interview that things still “go wrong all the time”.  Moreover, during the interview it is apparent that Mr Roulston appears lethargic on account of being under the influence of drugs, which also affects the reliability of his admissions.
[17]	Mr Mansfield submits that the most that can be established is that at least two ounces were manufactured as Mr Roulston admitted to manufacturing at least once, and that one manufacture would typically produce two ounces of methamphetamine.  
[18]	The Crown submits that it was open to Judge Mabey to infer that Mr Roulston manufactured eight ounces of methamphetamine because Mr Roulston had admitted that: (a) he had been manufacturing for a few years successfully; (b) each time he manufactured methamphetamine he produced one to two ounces; and (c) he manufactured the drug every few months.  Thus, it can be inferred that over the 20‑month and 26‑day charging period Mr Roulston would have manufactured methamphetamine at least once every five months, which equates to four occasions producing up to two ounces, being the eight ounces identified by Judge Mabey.  The Crown also reiterates the statements of Judge Mabey that the estimate of eight ounces is conservative and acts in Mr Roulston’s favour.  Moreover, Mr Roulston’s assertion that only two ounces were manufactured is entirely inconsistent with his admissions and with the presence of the quantity of methamphetamine and money that were also located at Mr Roulston’s address. 
[19]	The Crown disputes the submission for Mr Roulston that during the interview he was coming down from using methamphetamine as he did not exhibit any abnormal behaviour at the time.  The Crown also argues that there is no evidence coming down from methamphetamine use can impede a person’s memory or otherwise make a person an unreliable witness.  Rather, the Crown submits the circumstances indicate the statements of Mr Roulston are reliable, as he understood the gravity of the situation having been read his rights and was told that those statements may be given in evidence at the trial.  Mr Roulston also exercised a degree of care during the interview, for example, at one point he said “I’m digging myself a hole here”. 
Discussion
[20]	A determination on disputed facts requires a judge to make an evaluative assessment of the evidence.  As was observed in Heke v R, this entails a determination of relevant facts rather than the exercise of judicial discretion.  Accordingly, the appellate court has an obligation to consider the evidence and reach its own opinion on the facts in the dispute.
[21]	The question for this Court is whether the evidence showed beyond a reasonable doubt that Mr Roulston manufactured eight ounces of methamphetamine over the charging period.  We consider it did not.  The type of inferential reasoning in which Judge Mabey engaged does not lend itself to ascertaining, to the requisite legal standard, the precise quantity of methamphetamine produced from manufacturing.  This is because such reasoning rests on probabilities and estimates rather than proven facts from which logical inferences can reasonably be drawn. 
[22]	Mr Roulston admitted to supplying his partner and a “couple of few people”.  He said he sold by the “point”, which is a reference to 0.1 of a gram.  He admitted a point of methamphetamine sold for $100.  He admitted he was not a wealthy man but, given his admitted heavy usage, he had an expensive drug habit.  He agreed with the police officer that the only way to satisfy this addiction was for him to manufacture the drug.
[23]	Mr Roulston was then asked the following questions:
LN	Ok. And how how often do you have to cook?
MR	Well not very often, if I’m gonna do it, I like to do it, just one off and then that’s it, don’t have to do it again for a few months.
LN	Ok. So you say for a few months? So would you do a, a cook once every second or third month? Is it, is that the frequency?
MR	Well it varies I suppose depending on.
LN	[How] fast you’re going through the gear?
MR 	All sorts, all sorts of things, availability, money.
LN	Yeh.
MR	All sorts of things.
LN	Yeh.
MR	It’s not, nothing’s simple.
[24]	The above exchange shows Mr Roulston answering in generalisations which offer little certainty on the frequency with which he was manufacturing the drug and the weights he was producing.  
[25]	There is a further exchange about the base product he uses and the equipment found at his property, which he says he has not used, and then the interviewing officer proceeds as follows:
LN	And you’ve … told me that you manufacture once every two or three months.  Well what quantity would you get commonly out of a cook? 
MR	Well once yeh, couple of ounces …  yeh.  Just usually do that then you know, when it runs out hopefully raise some funds to get some more.
[26]	However, in the earlier exchange Mr Roulston never told the police officer he manufactured once every two or three months.  That was the understanding the police officer gleaned from the earlier exchange; further this understanding was never accepted by Mr Roulston.  His response was that “it varies I suppose depending on” and he proceeded to outline contingencies which might affect when he could carry out a manufacture.  Further, when this partly loaded question was put to him he proceeded to answer the second part of the question which asked about the quantity one manufacture might produce, without addressing the first part of the question which had assumed that Mr Roulston had engaged in a cook every two to three months. 
[27]	Following the above exchange, the police officer then asked Mr Roulston:
LN	 Yeh.  So you doing a couple of sets?
MR	One set.
LN	One set.
MR	Was yeh.  One set.   one set yeh.
LN	Ok, one set and you you get a couple of ounces out of that?
MR 	(Flicks eyebrows)
That is as much as Mr Roulston does to respond to the police officer’s question, but it is enough in our view to constitute a confirmatory response to the question.  
[28]	Finally, at a later stage in the interview the police officer questions Mr Roulston about his experience and ability to achieve a successful manufacture.  Mr Roulston tells the police officer he has been manufacturing successfully for “only a few years”.  The police officer responds:
LN	… I’d say you’d be at the stage where you you’d have it pretty much down to a fine art?
MR	No.
LN	No.
MR	Yeh.
LN	 You still muck up sets?
MR	Yeh.  Yeh.  Definitely.  But things go, things, things go wrong all the time.
[29]	This exchange confirms that Mr Roulston did not accept he was a manufacturer for whom every manufacture produced a successful outcome.  
[30]	The evidence the Crown had to rely upon to prove Mr Roulston manufactured eight ounces of methamphetamine was circumstantial evidence drawn inferentially from the video interview, in particular the passages identified above, and the items located at Mr Roulston’s property under the search warrant.  There was no direct evidence to support this conclusion.  
[31]	We accept the available evidence provides good reason to think Mr Roulston manufactured larger quantities of methamphetamine than the two ounces to which he admits, but we are not satisfied there was proof beyond reasonable doubt that he manufactured eight ounces. 
[32]	The available evidence does, however, leave us sure that over the 20‑month and 26‑day charge period Mr Roulston manufactured more than once, and that a typical successful manufacture would yield about two ounces.  He was found in possession of 37.6 grams of methamphetamine and has pleaded guilty to both possession for supply and supplying the drug over the same charge period as the manufacturing offence.  He is also an admitted heavy user of this drug.  He has admitted that he does not purchase the drug.  This leads us to infer that the 37.6 grams (which is approximately 1.3 ounces) is the residue of at least one manufacture and that given his own need for the drug he would have manufactured it at least one further time during the charge period.  All of which establishes that over the charge period there must have been at least two manufactures, which would have produced at least four ounces of methamphetamine.  
[33]	There is additional evidence which confirms the view we have reached.  Mr Roulston was also found in possession of $23,240 in cash.  There is no evidence to suggest a legitimate source of those funds.  During the police interview he admitted methamphetamine was sold at a retail level by the point, which typically sells for $100.  This indicates that he must have sold a substantial amount of methamphetamine at $100 per point.  Secondly, Mr Roulston sources the drug from his manufacturing, and so when the estimated quantity for supply is added to the quantity he would require for his personal use the total quantity available to him during the charge period must have been at least four ounces, if not more.  
[34]	Accordingly, there is enough circumstantial evidence to leave us sure inferentially that over the charge period Mr Roulston would have manufactured at least four ounces of methamphetamine.
[35]	The conclusion we have reached on the lower quantity of methamphetamine manufactured necessarily impacts on the sentence imposed, and so calls for it to be re‑examined.  
[36]	The appeal qualifies for consideration under this Court’s new guideline judgment in Zhang v R.  Four ounces is approximately 113 grams, which places Mr Roulston in the middle of band two.  
[37]	Under Zhang quantity of product and the role played by the offender influence the choice of starting point.  We consider six years to be within the appropriate range.  The circumstantial evidence points to Mr Roulston being a small-time commercial manufacturer and an addict who manufactures for personal use.
[38]	We see no error in the uplifts Judge Rollo made.  Accordingly, we would uplift the sentence by one year for the possession for supply and supply offending, with a further uplift of nine months for the firearm offending and three months to reflect previous related offending.  This takes the sentence to eight years’ imprisonment.  
[39]	We turn now to the appropriate discounts.  Judge Rollo gave total discounts of 25 per cent.  Mr Roulston contends those were not enough and greater discounts should have been given, particularly for his addiction to methamphetamine.  The Crown disputes Mr Roulston is entitled to a discount for addiction, because there is no evidence other than his own statements to police and the Court to show he is an addict.  Otherwise the Crown maintains the discounts given were generous, particularly the 10 per cent discount given for cooperation with police.
[40]	We consider the 10 per cent discount for cooperation was appropriate.  But for Mr Roulston’s admissions at the police interview, the police would have had to spend time and effort to find proof to support the charges of manufacturing and supplying methamphetamine.  The presence of 37.6 grams of methamphetamine on the property occupied by Mr Roulston supported charges of possession for supply, but proof of actual manufacturing and proof of actual supply to others during the charge period would have been more difficult to establish without Mr Roulston’s admissions. 
[41]	We consider the 7.5 per cent discount given for personal circumstances and addiction was insufficient.  We acknowledge the Crown’s argument that Zhang refers to the need for persuasive proof of addiction and not simply self-reporting from an offender.  However, we consider that here there is more than self-reporting to establish addiction.  
[42]	The pre-sentence report refers to Mr Roulston’s previous history of drug related offending and describes him as “by any measure, a man with a significant issue with methamphetamine”.  The report refers to Mr Roulston’s troubled early family background and his mother’s comments that he first used alcohol and then illegal drugs to self-medicate, which is a feature of methamphetamine use referred to in Zhang.   Further, the police interview proceeded on the basis that Mr Roulston was someone who could not financially support his drug habit without resorting to manufacturing methamphetamine for his own use.  This was used by the police officer to question Mr Roulston further about the scope and regularity of his manufacturing.  The personal factors that warrant a discount must be balanced against the presence of the commercial features of Mr Roulston’s offending, being his admissions of supplying others, the quantity of methamphetamine found at the property and the presence of electronic scales.  After taking all the relevant factors into account we consider a discount of 10 per cent is appropriate.  
[43]	The discounts so far reduce the sentence to six years and five months’ imprisonment.  There is then the discount for a guilty plea.  Judge Rollo referred to the guilty plea being entered late, and the contribution Mr Roulston made to that by his absconding while on bail during the course of the trial, but nonetheless gave a 7.5 per cent discount for the guilty pleas.  We consider this was too generous in the circumstances; we find that here no more than a five per cent discount is warranted.   This reduces the end sentence on the manufacturing offending to six years’ imprisonment, rounded down.
[44]	The focus on appeal was on the manufacturing sentence and no complaint was made about the other sentences, which are concurrent with the manufacturing sentence.  Accordingly, these stand. 
Result
[45]	The appeal against the sentence for manufacturing methamphetamine is allowed.  The sentence of seven years and six months’ imprisonment is set aside and in substitution Mr Roulston is sentenced to six years’ imprisonment.
[46]	The sentences imposed by Judge Rollo on the other offences stand. 
[47]	All sentences are to be served concurrently.  

Solicitors: 
Crown Law Office, Wellington for Respondent