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The Queen v Emirali; The Queen v Carroll [2006] NZCA 354 (12 December 2006)

Last Updated: 20 December 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA177/06
CA206/06

THE QUEEN

v

PAUL BRUCE EMIRALI (CA177/06)
IAN JOSEPH CARROLL (CA206/06)

Hearing: 30 November 2006

Court: Chambers, Randerson and Potter JJ

Counsel: P J Kaye for Paul Emirali
J Haigh QC for Ian Carroll
B R Northwood for Crown

Judgment: 12 December 2006 at 3 pm

JUDGMENT OF THE COURT

The appeals are dismissed.

REASONS OF THE COURT

(Given by Chambers J)

Importation of cocaine

[1] On 9 March last year, David Wunder, a United States national, flew into Auckland International Airport from Singapore. Customs officers spoke to him on arrival. They found on his person, concealed in his underwear, two packages containing white powder. On later analysis, that white powder was identified as 548g of 78% pure cocaine.
[2] Mr Wunder immediately advised he was prepared to assist the authorities. He told the customs officers he was due to meet a man whom he knew as "the mayor". He had his mobile phone number. Indeed, there were texts between him and the mayor saved in his mobile phone.
[3] Mr Wunder had never previously met the mayor. Accordingly, the police decided that Detective Dion Blair would impersonate Mr Wunder in an attempt to apprehend the mayor, who, on Mr Wunder’s account, appeared to be a party to the cocaine importation.
[4] Shortly afterwards, Detective Blair, posing as Mr Wunder, sent the mayor a text message saying he had landed. Detective Blair then spoke twice by mobile phone to the mayor and arranged to meet him at a motel unit in Newmarket. Detective Blair took with him to that meeting a package of sugar as a substitute for the cocaine.
[5] Two men turned up at the motel, expecting to meet Mr Wunder. One was Ian Carroll, the other Paul Emirali. The conversation that followed was recorded with a body microphone worn by Detective Blair. Mr Carroll identified himself as "the mayor of this town" and introduced Mr Emirali as "the governor". The ensuing conversation included discussions of Mr Wunder’s arrival arrangements, the quantity of the cocaine, and the price at which Mr Wunder proposed to sell the cocaine. Messrs Carroll and Emirali asked to sample the cocaine. On doing so, they realised it was sugar. At that point, police officers, who were listening into the conversation in the neighbouring motel unit, burst in and arrested the two men.
[6] Both men were charged with conspiracy to supply the class A controlled drug cocaine. In addition, Mr Carroll was charged as a party to the importation.
[7] Following trial by jury, both men were found guilty on the charges they faced. The trial judge, Frater J, sentenced Mr Carroll to nine years’ imprisonment on the importation charge and seven years’ imprisonment on the conspiracy charge, the sentences to be served concurrently. Mr Emirali was sentenced to seven years’ imprisonment on the conspiracy charge. Both men now appeal against their convictions. Mr Emirali also appeals against his sentence.

Issues on the appeals

[8] Four issues arise.
[9] First, in Mr Emirali’s case, did a miscarriage of justice arise from the incompetence of his trial counsel?
[10] Secondly, was the jury’s verdict on the importation charge in Mr Carroll’s case unreasonable or unsupportable having regard to the evidence?
[11] Thirdly, were the jury’s verdicts on the conspiracy charges unreasonable or unsupportable having regard to the evidence?
[12] Fourthly, in Mr Emirali’s case, was the sentence manifestly excessive?

In Mr Emirali’s case, did a miscarriage of justice arise from the incompetence of his trial counsel?

[13] Mr Emirali swore an affidavit in support of his contention that he had not been properly represented at trial. We record below the gist of his complaints against trial counsel, with trial counsel’s response. (Mr Emirali’s complaints are recorded in italics.)

 I had very little contact with [trial counsel] prior to the commencement of the trial.
Trial counsel’s records disclose there were 16 occasions on which he saw Mr Emirali in preparation for the trial. Counsel also noted that Mr Emirali rang him "almost daily" to discuss some aspect of his case.
 I was never briefed or prepared to give evidence in any way.
Trial counsel exhibited to his affidavit the detailed brief of evidence which he had prepared for Mr Emirali. That brief had numerous annotations on it, which counsel said Mr Emirali had made.
 I wanted to hear the crucial tape recordings made of the conversations...this never happened.
Trial counsel said that, as part of trial preparation, he had given a copy of the transcript to Mr Emirali, with comments that counsel considered relevant marked. Counsel’s secretary had also copied the audio CD and given that to Mr Emirali. Mr Emirali advised counsel that he had listened to that CD on a number of occasions. The contents of the CD were discussed between Mr Emirali and counsel on "numerous occasions", because its contents were so damaging.
 I wanted to give evidence on my own behalf...[trial counsel] later decided that I was not to give evidence and I did not agree with this decision nor did I acquiesce with it. I may have signed a document purporting to waive my right to give evidence but if I did I maintain that I would have signed that under duress.
Trial counsel maintains he advised Mr Emirali he ought to give evidence, so as to provide an explanation for the damaging content of the intercepted conversation at the motel. It was for that reason that counsel had prepared a detailed brief of evidence. On 1 February this year, however, Mr Emirali advised that, notwithstanding counsel’s advice, he did not wish to give evidence. Mr Emirali provided written instructions as follows:

I, PAUL BRUCE EMIRALI, of Auckland, Site Manager confirm that on my trial for possession for supply of cocaine, which is to be heard in the Auckland High Court on 7 February 2006, I do not wish to give evidence in my own defence.
I have had the advantages and disadvantages of giving evidence explained to me by my counsel. I consider that I would have too many difficulties in answering questions related to the intercepted conversations at the motel and that in giving evidence I would prejudice my defence rather than advance it. I have given evidence in the High Court previously as a witness and I therefore appreciate what it involves.
I have instructed my counsel that the only witnesses I wish to call in my defence include my wife Susan Mary Emirali and a Medical Practitioner who will confirm that I was taking medication for my hepatitis. I have advised my counsel that I will arrange this Medical Practitioner to attend at Court.

DATED at Auckland this 1st day of February 2006
[Signed] P B Emirali
Notwithstanding Mr Emirali’s decision, trial counsel continued to hope Mr Emirali would change his instructions in this regard. Accordingly, counsel prepared for trial on the basis that Mr Emirali might give evidence. Mr Emirali’s decision not to give evidence was based in part on an assumption Mr Carroll would give evidence. It appears that he thought Mr Carroll could provide an explanation for some of the damaging contents of the intercepted conversation. During the course of the trial, it became apparent Mr Carroll would not be giving evidence. Trial counsel says his advice remained that Mr Emirali should give evidence. Mr Emirali, however, decided to adhere to his earlier instruction and to adopt the same course as Mr Carroll. He then confirmed in writing again (this time on 9 February) that he did not want to give evidence in his trial.
 I also instructed [trial counsel] on a number of occasions to vigorously cross-examine the police officers involved in the entrapment of me in the motel itself because I wanted the jury to hear how unfair the tactic was. I gave him several instructions on this regard which were not carried out.
Trial counsel does not expressly answer this point. But there is obviously nothing in this complaint. There was little to cross-examine the police officers about: the conversation, after all, was recorded in full and accurately transcribed. A vigorous cross-examination would have been totally counterproductive, as no reasonable person (or juror) could conceivably have considered the police tactics "unfair".

[14] Mr Kaye, for Mr Emirali, advised us that, following receipt of trial counsel’s affidavit, he had invited Mr Emirali to prepare a response. Mr Emirali had declined to do so. Mr Kaye did not seek to cross-examine trial counsel on his affidavit.
[15] We have no hesitation in saying that this ground of appeal is totally without merit. Mr Emirali’s allegations against his trial counsel were patently untrue, and in circumstances where the erroneous assertions cannot be dismissed as mistaken recollection. We accept entirely trial counsel’s version where it conflicts with Mr Emirali's.
[16] It is most unfortunate that Mr Emirali’s allegations were not put to trial counsel prior to this ground being raised. Had they been and had trial counsel’s response been obtained, then almost certainly this putative ground of appeal would have been dropped. New counsel would have advised it had no chance of success, given that Mr Emirali’s allegations were clearly contrary to what had actually occurred and been recorded.
[17] This first ground of appeal fails.

Was the jury’s verdict on the importation charge unreasonable or unsupportable having regard to the evidence?

[18] Mr Haigh QC, for Mr Carroll, and Mr Northwood, for the Crown, were agreed on the test to be applied when an appeal is brought under s 385(1)(a) of the Crimes Act 1961. It is the test this court adopted in R v Ramage [1985] 1 NZLR 392 at 393, namely that the statutory test is satisfied "if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the [appellant]. It is not enough that this Court might simply disagree with the verdict of the jury." That test has been reaffirmed on numerous occasions: see, in particular, R v H CA200/98 28 October 1998 and R v McDonald CA142/04 29 July 2004. Most importantly, this court has emphasised that assertions that a verdict is "against the weight of the evidence" or that "the jury came to the wrong conclusion on the evidence before it" do not properly raise any ground of appeal: R v Piri [1987] 1 NZLR 66 and R v Te Kira CA423/05 18 May 2006.
[19] Counsel were also agreed that in this case the importation came to an end when the authorities seized the cocaine. It was therefore common ground that Mr Carroll could be a party to the importation only if he became involved prior to that seizure.
[20] The Crown case was that Mr Carroll became a party by agreeing to assist Mr Wunder, either by buying the cocaine himself or by agreeing to help him find a buyer should he bring the cocaine into New Zealand. Either way, Mr Carroll encouraged Mr Wunder to proceed with his plan to import cocaine.
[21] Mr Haigh submitted there was no reliable evidence to support the Crown case. He submitted, based on evidence Mr Wunder gave in cross-examination, that this had been a "solo venture" on Mr Wunder’s part. Mr Wunder was an opportunist who came to New Zealand with no fixed buyer in mind. Mr Wunder had apparently imported drugs into Australia previously on such an opportunistic basis. Mr Haigh submitted the conversation in the motel showed no clear agreement had been reached prior to that meeting. He conceded it was possible to infer from the conversation in the motel that by that time Mr Carroll wanted to buy the cocaine. But by then the importation had ceased; there was no reliable evidence that before that time Mr Carroll had evinced such an interest.
[22] We are satisfied that, despite Mr Haigh’s eloquent submissions, this ground of appeal cannot succeed. Our reasons are essentially the same as Frater J articulated when she dismissed an application to discharge Mr Carroll at the close of the Crown case.
[23] It was clear from Mr Wunder’s evidence, if accepted, that he and Mr Carroll had talked on the telephone when he (Mr Wunder) was still in Los Angeles. That conversation concerned the possibility of Mr Wunder’s bringing cocaine to New Zealand for sale.
[24] The Crown also called evidence of text messages which had passed between Mr Wunder and Mr Carroll prior to Mr Wunder’s arrival in New Zealand. We do not lengthen these reasons for judgment by setting out the details of the text messages, but it was clearly open to a jury to infer from them that Mr Carroll was encouraging Mr Wunder on his proposed importation. That encouragement arose in two ways. First, Mr Carroll held out the possibility that he would be the buyer of the cocaine. It is significant that Mr Wunder referred to the fact that, when he got to the taxi stand (where Mr Carroll would be meeting him), he would have nothing on him "but 50 bucks, a wet diaper, your poop and a smile on [his] face". The reference to "your poop" strongly suggested that the cocaine (which Mr Wunder carried in his underpants) was destined for Mr Carroll as purchaser. Alternatively, Mr Carroll encouraged Mr Wunder by his offer to assist him by meeting him and having money for him and, by implication, by introducing him to others who might be interested in buying if Mr Carroll did not himself. Both those inferences were available on the totality of the evidence; either would support a finding of encouragement.
[25] We accept that by the time of the motel meeting the importation had come to an end. But that does not mean that what was said at that meeting had relevance only to the conspiracy charge. What was said at that meeting also has relevance to the importation charge in so far as it pointed to what had previously been discussed between Mr Wunder and Mr Carroll. For instance, there was discussion in the motel about price and Mr Carroll indicated a figure of "50", which the Crown says, in context, must have meant $50,000. Detective Blair posing as Mr Wunder indicated that, when he left the United States, "everyone was talking US dollars". Mr Carroll immediately refuted that, indicating that New Zealand dollars was the currency. The importance of that exchange is that it demonstrated there had been a prior discussion about the price at which Mr Carroll might buy the cocaine.
[26] In our view, Mr Carroll has not come close to satisfying the Ramage test. This ground of appeal too must fail. The jury’s verdict on the importation charge was neither unreasonable nor unsupportable having regard to the evidence.

Were the jury’s verdicts on the conspiracy charges unreasonable or unsupportable having regard to the evidence?

[27] Both appellants advanced this ground of appeal.
[28] We can deal with this point shortly. There was clearly evidence from which the jury could infer that Messrs Carroll and Emirali were involved in a plan to purchase Mr Wunder’s cocaine, either as agents or principals, for onward sale in New Zealand. During the motel meeting, they made it plain they were interested in buying the cocaine. They discussed amounts of product. They discussed the purchase price. They then proceeded to test quality; it was during the course of testing that they discovered that "Mr Wunder" had with him sugar, not cocaine.
[29] Indeed, it was because the recording of the motel conversation was so damaging that Mr Emirali’s trial counsel advised he should give evidence to explain away the obvious inferences to be drawn from it. Mr Emirali decided not to give evidence because he considered he would have "too many difficulties in answering questions related to the intercepted conversations".
[30] Mr Kaye’s main point was that the police found no money following a search at the men’s homes. While that fact was no doubt helpful to the defence, it was not decisive. It may be that the money was hidden elsewhere. Alternatively, it is possible that others unknown were part of the conspiracy and that they had the money to pay Mr Wunder.
[31] This ground of appeal fails.

Was Mr Emirali’s sentence manifestly excessive?

[32] In sentencing on the conspiracy charge, Frater J recorded that all counsel agreed that the case of R v Yee CA169/01 29 November 2001 provided some assistance in fixing an appropriate sentence for the conspiracy charge: HC AK CRI-2005-004-012719 28 April 2006 at [23]. In that case, this court upheld an eight year sentence on a charge of possession of cocaine for supply. Customs had intercepted a parcel from Peru containing approximately 416g of 80% pure cocaine. The police removed most of the cocaine and then caused the parcel to be delivered to the address specified on it. Mr Yee and an accomplice were later caught in the act, having opened the parcel. The sentencing judge had adopted an eight year starting point.
[33] In the present case, Frater J noted the similarity of the overall circumstances, particularly in terms of the quantity and quality of cocaine involved. The Crown accepted that "some further discount" should be given from the sentence imposed in Yee to reflect the fact that this was a charge of conspiracy rather than one of supply: at [24]. Frater J agreed with that. She adopted a starting point of seven years’ imprisonment: at [38]. Because there were no mitigating circumstances, that became Mr Emirali’s sentence.
[34] Mr Kaye submitted that the sentence was manifestly excessive. He respectfully proffered two criticisms of Frater J’s approach. The first was that she adopted too high a starting point. In making that submission, he relied on two cases, R v Wallace [1999] 3 NZLR 159 (CA) and R v Marsters (1996) 13 CRNZ 571 (CA). Wallace provides little assistance, however, as it was concerned with class B offending. Marsters can be distinguished as it seems clear the amount of cocaine to be supplied by the group of which Mr Marsters was a member was "at the lower end of the scale". That can certainly not be said of the present case.
[35] Yee is clearly much more on point. Mr Kaye attempted to distinguish that on the basis that significantly lower sentences are appropriate on conspiracy charges compared with possession for supply charges, because conspiracy is in the nature of things an "inchoate crime". Frater J did take into account the fact that this was a conspiracy charge: she lowered the starting point to reflect that. We consider her approach to be exactly right. The line in this case between possession for supply and conspiracy to supply was very fine. Indeed, this could easily have been a possession for supply case had the police decided to mount the operation differently. Police frequently in these circumstances leave some of the drug in the package so that when the offender picks it up, he or she can then be charged with actual possession of the drug for supply. Had the police adopted that course here, and had the police allowed events in the motel to run on just a minute or so longer, Mr Emirali could well have faced a possession for supply charge. In a sense, he has derived a benefit from the method of operation the police adopted. In broad moral terms, his culpability is effectively that of someone found guilty of possession for supply.
[36] Mr Kaye’s second criticism was but faintly urged. He submitted Mr Emirali’s sentence was out of line with Mr Carroll’s. Mr Emirali received the same sentence on the conspiracy charge as Mr Carroll received, but Mr Kaye submitted Mr Emirali had "played a lesser role in the offending".
[37] The test for appellate intervention on the grounds of disparity is well known. This court in R v Lawson [1982] 2 NZLR 219 at 223 said the test "is not merely whether an offender feels a sense of grievance over the sentence imposed upon him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice". This case does not come near meeting that test. It is true Mr Emirali’s role in the overall offending was lower than Mr Carroll’s. Mr Carroll was also involved as a party to the importation. The starting point for his overall offending was 11 years’ imprisonment: at [35]. That was a starting point almost 60% higher than Mr Emirali’s. It is true the judge brought back Mr Carroll’s sentence to nine years’ imprisonment, but that was because of mitigating factors personal to him, factors entirely missing in Mr Emirali’s case.
[38] It is somewhat artificial to compare Mr Carroll’s conspiracy sentence with Mr Emirali’s, as the crucial comparison is between Mr Carroll’s overall sentence and Mr Emirali’s. But, even if the conspiracy sentences are compared, no error in the judge’s approach is disclosed. There is nothing in the motel conversation which suggests Mr Emirali’s role was to be smaller than Mr Carroll’s. Mr Emirali may have been later in getting involved, but, once involved, there is no indication that his role was to be a lesser one.
[39] In our view, neither ground of attack has been made out. The sentence imposed on Mr Emirali was within the available range. The appeal against sentence must be dismissed.

Solicitors:
Swarbrick Beck, Auckland, for Ian Carroll
Crown Law Office, Wellington

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[1]	On 9 March last year, David Wunder, a United States national, flew into Auckland International Airport from Singapore. Customs officers spoke to him on arrival. They found on his person, concealed in his underwear, two packages containing white powder. On later analysis, that white powder was identified as 548g of 78% pure cocaine.
[2]	Mr Wunder immediately advised he was prepared to assist the authorities. He told the customs officers he was due to meet a man whom he knew as "the mayor". He had his mobile phone number. Indeed, there were texts between him and the mayor saved in his mobile phone.
[3]	Mr Wunder had never previously met the mayor. Accordingly, the police decided that Detective Dion Blair would impersonate Mr Wunder in an attempt to apprehend the mayor, who, on Mr Wunder’s account, appeared to be a party to the cocaine importation.
[4]	Shortly afterwards, Detective Blair, posing as Mr Wunder, sent the mayor a text message saying he had landed. Detective Blair then spoke twice by mobile phone to the mayor and arranged to meet him at a motel unit in Newmarket. Detective Blair took with him to that meeting a package of sugar as a substitute for the cocaine.
[5]	Two men turned up at the motel, expecting to meet Mr Wunder. One was Ian Carroll, the other Paul Emirali. The conversation that followed was recorded with a body microphone worn by Detective Blair. Mr Carroll identified himself as "the mayor of this town" and introduced Mr Emirali as "the governor". The ensuing conversation included discussions of Mr Wunder’s arrival arrangements, the quantity of the cocaine, and the price at which Mr Wunder proposed to sell the cocaine. Messrs Carroll and Emirali asked to sample the cocaine. On doing so, they realised it was sugar. At that point, police officers, who were listening into the conversation in the neighbouring motel unit, burst in and arrested the two men.
[6]	Both men were charged with conspiracy to supply the class A controlled drug cocaine. In addition, Mr Carroll was charged as a party to the importation.
[7]	Following trial by jury, both men were found guilty on the charges they faced. The trial judge, Frater J, sentenced Mr Carroll to nine years’ imprisonment on the importation charge and seven years’ imprisonment on the conspiracy charge, the sentences to be served concurrently. Mr Emirali was sentenced to seven years’ imprisonment on the conspiracy charge. Both men now appeal against their convictions. Mr Emirali also appeals against his sentence.

[8]	Four issues arise.
[9]	First, in Mr Emirali’s case, did a miscarriage of justice arise from the incompetence of his trial counsel?
[10]	Secondly, was the jury’s verdict on the importation charge in Mr Carroll’s case unreasonable or unsupportable having regard to the evidence?
[11]	Thirdly, were the jury’s verdicts on the conspiracy charges unreasonable or unsupportable having regard to the evidence?
[12]	Fourthly, in Mr Emirali’s case, was the sentence manifestly excessive?

[14]	Mr Kaye, for Mr Emirali, advised us that, following receipt of trial counsel’s affidavit, he had invited Mr Emirali to prepare a response. Mr Emirali had declined to do so. Mr Kaye did not seek to cross-examine trial counsel on his affidavit.
[15]	We have no hesitation in saying that this ground of appeal is totally without merit. Mr Emirali’s allegations against his trial counsel were patently untrue, and in circumstances where the erroneous assertions cannot be dismissed as mistaken recollection. We accept entirely trial counsel’s version where it conflicts with Mr Emirali's.
[16]	It is most unfortunate that Mr Emirali’s allegations were not put to trial counsel prior to this ground being raised. Had they been and had trial counsel’s response been obtained, then almost certainly this putative ground of appeal would have been dropped. New counsel would have advised it had no chance of success, given that Mr Emirali’s allegations were clearly contrary to what had actually occurred and been recorded.
[17]	This first ground of appeal fails.

[18]	Mr Haigh QC, for Mr Carroll, and Mr Northwood, for the Crown, were agreed on the test to be applied when an appeal is brought under s 385(1)(a) of the Crimes Act 1961. It is the test this court adopted in R v Ramage [1985] 1 NZLR 392 at 393, namely that the statutory test is satisfied "if the Court is of the opinion that a jury acting reasonably must have entertained a reasonable doubt as to the guilt of the [appellant]. It is not enough that this Court might simply disagree with the verdict of the jury." That test has been reaffirmed on numerous occasions: see, in particular, R v H CA200/98 28 October 1998 and R v McDonald CA142/04 29 July 2004. Most importantly, this court has emphasised that assertions that a verdict is "against the weight of the evidence" or that "the jury came to the wrong conclusion on the evidence before it" do not properly raise any ground of appeal: R v Piri [1987] 1 NZLR 66 and R v Te Kira CA423/05 18 May 2006.
[19]	Counsel were also agreed that in this case the importation came to an end when the authorities seized the cocaine. It was therefore common ground that Mr Carroll could be a party to the importation only if he became involved prior to that seizure.
[20]	The Crown case was that Mr Carroll became a party by agreeing to assist Mr Wunder, either by buying the cocaine himself or by agreeing to help him find a buyer should he bring the cocaine into New Zealand. Either way, Mr Carroll encouraged Mr Wunder to proceed with his plan to import cocaine.
[21]	Mr Haigh submitted there was no reliable evidence to support the Crown case. He submitted, based on evidence Mr Wunder gave in cross-examination, that this had been a "solo venture" on Mr Wunder’s part. Mr Wunder was an opportunist who came to New Zealand with no fixed buyer in mind. Mr Wunder had apparently imported drugs into Australia previously on such an opportunistic basis. Mr Haigh submitted the conversation in the motel showed no clear agreement had been reached prior to that meeting. He conceded it was possible to infer from the conversation in the motel that by that time Mr Carroll wanted to buy the cocaine. But by then the importation had ceased; there was no reliable evidence that before that time Mr Carroll had evinced such an interest.
[22]	We are satisfied that, despite Mr Haigh’s eloquent submissions, this ground of appeal cannot succeed. Our reasons are essentially the same as Frater J articulated when she dismissed an application to discharge Mr Carroll at the close of the Crown case.
[23]	It was clear from Mr Wunder’s evidence, if accepted, that he and Mr Carroll had talked on the telephone when he (Mr Wunder) was still in Los Angeles. That conversation concerned the possibility of Mr Wunder’s bringing cocaine to New Zealand for sale.
[24]	The Crown also called evidence of text messages which had passed between Mr Wunder and Mr Carroll prior to Mr Wunder’s arrival in New Zealand. We do not lengthen these reasons for judgment by setting out the details of the text messages, but it was clearly open to a jury to infer from them that Mr Carroll was encouraging Mr Wunder on his proposed importation. That encouragement arose in two ways. First, Mr Carroll held out the possibility that he would be the buyer of the cocaine. It is significant that Mr Wunder referred to the fact that, when he got to the taxi stand (where Mr Carroll would be meeting him), he would have nothing on him "but 50 bucks, a wet diaper, your poop and a smile on [his] face". The reference to "your poop" strongly suggested that the cocaine (which Mr Wunder carried in his underpants) was destined for Mr Carroll as purchaser. Alternatively, Mr Carroll encouraged Mr Wunder by his offer to assist him by meeting him and having money for him and, by implication, by introducing him to others who might be interested in buying if Mr Carroll did not himself. Both those inferences were available on the totality of the evidence; either would support a finding of encouragement.
[25]	We accept that by the time of the motel meeting the importation had come to an end. But that does not mean that what was said at that meeting had relevance only to the conspiracy charge. What was said at that meeting also has relevance to the importation charge in so far as it pointed to what had previously been discussed between Mr Wunder and Mr Carroll. For instance, there was discussion in the motel about price and Mr Carroll indicated a figure of "50", which the Crown says, in context, must have meant $50,000. Detective Blair posing as Mr Wunder indicated that, when he left the United States, "everyone was talking US dollars". Mr Carroll immediately refuted that, indicating that New Zealand dollars was the currency. The importance of that exchange is that it demonstrated there had been a prior discussion about the price at which Mr Carroll might buy the cocaine.
[26]	In our view, Mr Carroll has not come close to satisfying the Ramage test. This ground of appeal too must fail. The jury’s verdict on the importation charge was neither unreasonable nor unsupportable having regard to the evidence.

[27]	Both appellants advanced this ground of appeal.
[28]	We can deal with this point shortly. There was clearly evidence from which the jury could infer that Messrs Carroll and Emirali were involved in a plan to purchase Mr Wunder’s cocaine, either as agents or principals, for onward sale in New Zealand. During the motel meeting, they made it plain they were interested in buying the cocaine. They discussed amounts of product. They discussed the purchase price. They then proceeded to test quality; it was during the course of testing that they discovered that "Mr Wunder" had with him sugar, not cocaine.
[29]	Indeed, it was because the recording of the motel conversation was so damaging that Mr Emirali’s trial counsel advised he should give evidence to explain away the obvious inferences to be drawn from it. Mr Emirali decided not to give evidence because he considered he would have "too many difficulties in answering questions related to the intercepted conversations".
[30]	Mr Kaye’s main point was that the police found no money following a search at the men’s homes. While that fact was no doubt helpful to the defence, it was not decisive. It may be that the money was hidden elsewhere. Alternatively, it is possible that others unknown were part of the conspiracy and that they had the money to pay Mr Wunder.
[31]	This ground of appeal fails.

[32]	In sentencing on the conspiracy charge, Frater J recorded that all counsel agreed that the case of R v Yee CA169/01 29 November 2001 provided some assistance in fixing an appropriate sentence for the conspiracy charge: HC AK CRI-2005-004-012719 28 April 2006 at [23]. In that case, this court upheld an eight year sentence on a charge of possession of cocaine for supply. Customs had intercepted a parcel from Peru containing approximately 416g of 80% pure cocaine. The police removed most of the cocaine and then caused the parcel to be delivered to the address specified on it. Mr Yee and an accomplice were later caught in the act, having opened the parcel. The sentencing judge had adopted an eight year starting point.
[33]	In the present case, Frater J noted the similarity of the overall circumstances, particularly in terms of the quantity and quality of cocaine involved. The Crown accepted that "some further discount" should be given from the sentence imposed in Yee to reflect the fact that this was a charge of conspiracy rather than one of supply: at [24]. Frater J agreed with that. She adopted a starting point of seven years’ imprisonment: at [38]. Because there were no mitigating circumstances, that became Mr Emirali’s sentence.
[34]	Mr Kaye submitted that the sentence was manifestly excessive. He respectfully proffered two criticisms of Frater J’s approach. The first was that she adopted too high a starting point. In making that submission, he relied on two cases, R v Wallace [1999] 3 NZLR 159 (CA) and R v Marsters (1996) 13 CRNZ 571 (CA). Wallace provides little assistance, however, as it was concerned with class B offending. Marsters can be distinguished as it seems clear the amount of cocaine to be supplied by the group of which Mr Marsters was a member was "at the lower end of the scale". That can certainly not be said of the present case.
[35]	Yee is clearly much more on point. Mr Kaye attempted to distinguish that on the basis that significantly lower sentences are appropriate on conspiracy charges compared with possession for supply charges, because conspiracy is in the nature of things an "inchoate crime". Frater J did take into account the fact that this was a conspiracy charge: she lowered the starting point to reflect that. We consider her approach to be exactly right. The line in this case between possession for supply and conspiracy to supply was very fine. Indeed, this could easily have been a possession for supply case had the police decided to mount the operation differently. Police frequently in these circumstances leave some of the drug in the package so that when the offender picks it up, he or she can then be charged with actual possession of the drug for supply. Had the police adopted that course here, and had the police allowed events in the motel to run on just a minute or so longer, Mr Emirali could well have faced a possession for supply charge. In a sense, he has derived a benefit from the method of operation the police adopted. In broad moral terms, his culpability is effectively that of someone found guilty of possession for supply.
[36]	Mr Kaye’s second criticism was but faintly urged. He submitted Mr Emirali’s sentence was out of line with Mr Carroll’s. Mr Emirali received the same sentence on the conspiracy charge as Mr Carroll received, but Mr Kaye submitted Mr Emirali had "played a lesser role in the offending".
[37]	The test for appellate intervention on the grounds of disparity is well known. This court in R v Lawson [1982] 2 NZLR 219 at 223 said the test "is not merely whether an offender feels a sense of grievance over the sentence imposed upon him compared with that imposed on his fellow offender but whether the disparity is such as not to be consonant with the appearance of justice". This case does not come near meeting that test. It is true Mr Emirali’s role in the overall offending was lower than Mr Carroll’s. Mr Carroll was also involved as a party to the importation. The starting point for his overall offending was 11 years’ imprisonment: at [35]. That was a starting point almost 60% higher than Mr Emirali’s. It is true the judge brought back Mr Carroll’s sentence to nine years’ imprisonment, but that was because of mitigating factors personal to him, factors entirely missing in Mr Emirali’s case.
[38]	It is somewhat artificial to compare Mr Carroll’s conspiracy sentence with Mr Emirali’s, as the crucial comparison is between Mr Carroll’s overall sentence and Mr Emirali’s. But, even if the conspiracy sentences are compared, no error in the judge’s approach is disclosed. There is nothing in the motel conversation which suggests Mr Emirali’s role was to be smaller than Mr Carroll’s. Mr Emirali may have been later in getting involved, but, once involved, there is no indication that his role was to be a lesser one.
[39]	In our view, neither ground of attack has been made out. The sentence imposed on Mr Emirali was within the available range. The appeal against sentence must be dismissed.