Burden of proof at disputed facts hearing — statutory interpretation — supplying Class A controlled drug — cocaine — selling cocaine — possession for supply — drug cartel — refugee — duress — joint charges — Misuse of Drugs Act 1975, s 6 — Crimes Act 1961, s 66 — Sentencing Act 2002, s 24 — R v Marks High Court, Auckland, S38/02, 17 April 2003 — “Proof of Disputed Facts on Sentence.” NZLCR 76, 2001 — R v Taueki [2005] 3 NZLR 372 — Wharepapa v Police [2015] NZHC 3280 — Archer v R [2017] NZCA 52 — Mark v R [2019] NZCA 121 — R v Broughton [2019] NZHC 1566 — R v Smith High Court Auckland CRI-2015-090-7987 15 September 2006 — Marsh v R [2019] NZHC 310 — R v Marsh [2018] NZDC 27292 — R v Stoves CA264/06 [2006] NZCA 483 (7 November 2006) — Irvine v R CRI-2009-049-000089 High Court Christchurch 8 July 2009 Panckhurst J — R v Akulue CRI-2011-004-001967 District Court Auckland 2 May 2014 DCJ Kiernan — Hillman v R [2010] NZCA 337. The two defendants had pleaded guilty (along with a third co-defendant) to one charge each of jointly supplying the class A controlled drug cocaine, jointly selling cocaine and possessing cocaine for the purposes of supply. It was agreed that the co-defendant was the primary offender but the two defendants had been critical to carrying out the offending. A sentencing indication was held in which the end indicated sentence for the first defendant was 7 years' imprisonment and five and a half for the second defendant. The defendants sought a disputed facts hearing as they believed their sentencing should include discounts for duress. This hearing was to determine whether the defendants or the Crown had the burden of proof in relation to the mitigating factor of duress. The defendants alleged they were pressured to take part in the offending by a drug cartel in Columbia. It was alleged that the defendants took part in the offending as they had been threatened that their family would be harmed or killed if they didn't. The framework for a disputed facts hearing is set out in s 24 of the Sentencing Act (the Act). The onus is on an offender "to prove on the balance of probabilities the existence of a disputed mitigating fact that is not related to the nature of the offence or the offender's part in it". The issue in this hearing was therefore a matter of statutory interpretation as to whether or not the disputed mitigating facts relating to the asserted duress were related to the offence or not. The Crown argued that the asserted duress was not relevant to the offending and was merely the defendants' motivation to take part. It was also noted that facts that far away from the offending are completely in the control of the defendant and as a practical matter would be extremely difficult for the Crown to disprove. Counsel for the first defendant argued that duress would go directly to the defendants' culpability in committing the offence and drew an analogy between duress and self-defence. The Judge reviewed the Act and relevant case law. It was noted the Act did not refer to proximity to the offending in time and space, to whether or not the facts are primarily or entirely within the knowledge of the defendants, or to the degree of difficulty the Crown may have in proving disputed aggravating facts or negating mitigating facts. Duress was related to the offence and therefore the Judge found that Crown was responsible for negating the disputed mitigating facts relating to duress. Judgment Date: 21 August 2019.