Milosevic v R

• Jurisdiction: New Zealand
• Judge: Clifford J
• Judgment Date: 12 October 2022
• Neutral Citation: [2022] NZCA 479
• Docket Number: CA99/2021 CA122/2021 CA153/2021 CA400/2021 CA114/2021 CA119/2021
• Court: Court of Appeal

Between

Frank Amadeus Milosevic

Slobodan Rahoroi Milosevic

Starlight Whetumarama

Manuel

Lawrence Te Kira

Keith Pryor

Irene Raki

Raiha Tawera

Appellants

and

The King

Respondent

[2022] NZCA 479

Court:

Clifford, Lang and Mallon JJ

CA99/2021

CA79/2021

CA122/2021

CA153/2021

CA400/2021

CA114/2021

CA119/2021

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

Criminal Sentence — appeals against convictions and sentences for methamphetamine and cannabis charges and money laundering — high commercial dealing — roles in offending — two-step approach to sentencing for methamphetamine offending

Counsel:

W T Nabney for Frank Amadeus Milosevic

G A Walsh for Slobodan Rahoroi Milosevic

M J James for Starlight Whetumarama Manuel

A M Simperingham and D A Berry for Lawrence Te Kira

C D Bean and A Bean for Keith Pryor

R E Webby for Irene Raki

N M Dutch for Raiha Tawera

F R J Sinclair, Z A Fuhr and T R Simpson for Respondent

• A Mr F Milosevic and Mr S Milosevic's appeals against conviction are allowed in part. Their convictions for money laundering are quashed. Their appeals against conviction are otherwise dismissed.

• B Mr F Milosevic's appeal against sentence is allowed in part. We substitute his sentence of 17 years and six months’ imprisonment with a 50 per cent MPI with one of 16 years and six months’ imprisonment with a 50 per cent MPI.

• C Mr S Milosevic's appeal against sentence is allowed in part. We substitute his sentence of 15 years and nine months’ imprisonment with a 50 per cent MPI with one of 14 years and nine months’ imprisonment with a 50 per cent MPI.

• D Ms Raki and Ms Tawera's appeals against conviction and sentence are allowed. Their convictions for money laundering are quashed.

• E Mr Manuel's appeal against conviction and sentence is dismissed.

• F Mr Pryor's application for an extension of time to appeal is granted, but his appeal against conviction and sentence is dismissed.

• G Mr Te Kira's appeal against sentence is dismissed.

JUDGMENT OF THE COURT

REASONS OF THE COURT

(Given by Clifford J)

TABLE OF CONTENTS

Introduction	[1]
Background	[2]
Offending	[2]
Convictions and sentences	[4]
Conviction appeals	[6]
The trial	[8]
Conviction appeals	[12]
Drug offending	[16]
Inadequate computer access — F Milosevic	[16]
The glossary of terms	[33]
Mr Boyes' evidence — Mr S Milosevic	[38]
The F Milosevic “cross-examination” ruling	[42]
The Judge's interventions	[44]
F Milosevic	[45]
Detectives Scott, Waugh and Sowter	[70]
The Judge's summing up	[75]
Money laundering	[92]
Overview	[92]
The severance decision	[96]
Interventions — cross-examination Ms Clay	[128]
The late amendment of the charge	[139]
The Judge's summing up	[143]
Our assessment	[149]
Sentence appeals	[160]
Mr F Milosevic	[163]
Mr S Milosevic	[173]
Mr Pryor	[188]
Mr Te Kira	[192]
Mr Manuel	[199]
Result	[204]

Introduction

1 On 13 November 2020, following an eight-week jury trial, the appellants were convicted on a range of methamphetamine and cannabis offending, and associated money laundering, charges. They were sentenced by Judge Mabey KC in the District Court at Tauranga on 11 and 12 February 2021. These are appeals against conviction and sentence. 1

Background

Offending

2 The charges the appellants faced arose out of a police operation called “Operation Notus” conducted from August 2017 to March 2018 (the Operation). The Operation resulted in the arrests of more than 50 people. The Crown decided to group the various people charged for hearing over three separate trials. A number of people pleaded guilty. In the trial before Judge Mabey, there were eight defendants who went to trial, seven (the appellants) were convicted, one was acquitted.

3 The Crown's case at trial was that Mr Frank Milosevic, the president of the Kawerau chapter of the Mongrel Mob, and his son Mr Slobodan Milosevic were the leaders of a methamphetamine and cannabis business involving, as relevant, some 2.5 kg of methamphetamine and some 400 cannabis plants. 2 Whilst Mr F Milosevic was president, the Crown asserted Mr S Milosevic was his “right hand man”. The Crown also alleged, by reference to expert accounting evidence of a Ms Clay, that approximately $510,000 was laundered by the Milosevics and their partners, Ms Raki and Ms Tawera.

Convictions and sentences

4 The details of the charges the appellants faced at trial and their convictions and sentences are as follows:

• (a) Mr F Milosevic (CA99/2021) faced 20 charges involving methamphetamine, cannabis and money laundering offences, was found guilty of 16 of those charges and was sentenced to 17 years and six months' imprisonment, with a minimum period of imprisonment (MPI) of eight years and nine months. 3

• (b) Mr S Milosevic (CA79/2021) faced 20 charges of methamphetamine, cannabis and money laundering offences, was convicted on 19 of those charges and was sentenced to 15 years and nine months' imprisonment with an MPI of seven years and 10 months. 4

• (c) Ms Raki (CA114/2021), Mr F Milosevic's partner, faced and was convicted on two charges of money laundering and was sentenced to two years and six months' imprisonment. 5

• (d) Ms Tawera (CA119/2021), Mr S Milosevic's partner, faced and was convicted on three charges of money laundering and was sentenced to 12 months' home detention followed by nine months' post-detention conditions. 6

• (e) Mr Manuel (CA122/2021) faced 15 charges, principally in relation to dealing, possession and supply of some 120 ounces of cannabis as well as some minor methamphetamine offending, was convicted on 14 of those charges and sentenced to three years and four months' imprisonment. 7

• (f) Mr Pryor (CA400/2021) faced and was convicted on six dealing charges; three each relating to cannabis and methamphetamine and was sentenced to six years and nine months' imprisonment. 8

• (g) Mr Te Kira (CA153/2021), who was one source of the Milosevics' methamphetamine, faced and was convicted on four charges in relation to the offer, supply and possession for supply of methamphetamine and was sentenced to four years' imprisonment. 9

5 All except Mr Te Kira appeal their convictions and sentences. Mr Te Kira only appeals his sentence. Ms Tawera's counsel now says that, since she has served her one year of home detention, her sentence appeal is moot and as such we need not consider it.

Conviction appeals

6 A number of the appellants raise similar challenges to their convictions:

(a) The Milosevics, Mr Manuel, Ms Raki and Ms Tawera all say the way the Judge (i) conducted their trials, particularly by interfering adversely to their interests during the taking of the evidence of Detectives Scott, Waugh and Sowter, Ms Clay and Mr F Milosevic himself, and (ii) summed-up favourably to the Crown, resulted in a miscarriage of justice.

(b) The Milosevics, Ms Raki and Ms Tawera challenge:

(i) the Judge's decision declining severance of the money laundering charges;

(ii) the Judge's decision allowing amendment of the terms of the money laundering charges after the close of the Crown's case; and

(iii) the admissibility of Ms Clay's expert accounting evidence.

(c) Mr S Milosevic, Mr Manuel, My Pryor and Ms Raki and Ms Tawera all say the Judge erred in ruling their counsel could not “cross-examine” — as they put it — Mr F Milosevic.

7 In addition:

(a) Mr F Milosevic he says he was wrongly denied access to a computer whilst in prison on remand. That inhibited his ability to adequately prepare his defence, given the prosecution case relied on thousands of intercepted audio calls and text messages.

(b) Mr S Milosevic says:

(i) a glossary of terms (exhibit B) of commonly used drug codes was wrongly allowed as evidence: 10 and

(ii) evidence of telephone calls between Mr S Milosevic and a Mr Blair Boyes (in relation to transactions and discussions around firearms) should not been included as having no probative value and being unfairly prejudicial.

(c) Ms Raki complains she was not able to engage the services of an expert accountant because she only received Ms Clay's financial analysis six weeks before the trial began. Whilst the police had provided an earlier brief from a Detective Shallcross, Ms Raki says Ms Clay's evidence was different in terms of complexity, quantum and configuration.

The trial

8 Those grounds of appeal need to be placed in the context of the trial as a whole. In summary:

(a) This was a long trial, lasting some eight weeks (21 September to 13 November 2020). Evidence was taken over 24 sitting days resulting in a transcript, including the Judge's challenged interventions and his many — as is commonplace in a trial of this nature — exchanges with counsel, that runs to 2,250 pages.

(b) The prosecution case involved a total of 35 witnesses, 10 of whose evidence was read by consent, took a total of 18 sitting days and produced 1,597 pages of transcript. The Crown's evidence fell into three main categories:

(i) The first, and by far the largest, comprised intercepted text messages being read into the record, intercepted telephone conversations being played and the significance of call data obtained by production orders from telephone companies being explained.

(ii) The second comprised evidence gathered by the police during what is known as the “termination” phase of the Operation where relevant premises are searched, suspects arrested and evidence, such as of drugs and firearms, obtained.

(iii) The third comprised financial evidence on which the money laundering charges were based.

(c) The defence case occupied six sitting days between 23 October and 2 November. Mr F Milosevic gave evidence and/or was cross-examined on each of those days. The gist of Mr...