R v de Lautour [2020] NZDC 2221

Published 12 June 2020

Disputed facts hearing — drug offending — possession for supply — whether for commercial supply — aggravating factor — onus of proof — methamphetamine — meth — unlawful sale of tobacco — Customs and Excise Act 2018 — Sentencing Act 2002, s 24(2). This was a hearing to determine the facts in relation to the alleged offending. After a police search conducted at his home and two other locations, the defendant had been charged with possession of methamphetamine for the purpose of commercial supply and sale of tobacco in breach of the Customs and Excise Act 2018. The defendant had pleaded guilty to possession of methamphetamine but denied that it was for commercial sale, instead maintaining that it was for personal use and for sharing amongst his friends. Possession for commercial supply of an illicit drug is a significant aggravating factor and under s 24(2) of the Sentencing Act 2002, where such a fact is disputed by the defendant, the onus is on the prosecution to prove beyond a reasonable doubt that the disputed fact is made out. The amount of methamphetamine found at the defendant's premises far exceeded the amount at which supply is presumed; however, the other elements of commerciality were not present. The police did not find any other evidence of actual or intended sales. There was no cellphone data, check list, or evidence of specific transactions on any particular date. The police relied on the quantity found and the way that it had been packaged into smaller snaplock bags. This was explained by the defendant who personally used the drug and would buy it in ounce bags and then separate it into smaller bags for ease of use. The security cameras at the defendant's home were explained by the fact he had been subject to a home invasion and was cautious. The Judge considered that the defendant's evidence in relation to this cast a reasonable doubt in relation to the element of commerciality. The threshold for proving beyond a reasonable doubt the aggravating fact was a high one and the Judge did not consider it had been met. Judgment Date: 5 February 2020.