R v Mason CA456/97 [1998] NZCA 281 (24 February 1998)

Last Updated: 31 December 2023

IN THE COURT OF APPEAL OF NEW ZEALAND CA 456/97

THE QUEEN

v

ROBERT MASON

Coram: Richardson P Tipping J Anderson J

Hearing: 24 February 1998 (at Auckland)

Counsel: S.D. Cassidy for Appellant

K. Raftery for Crown

Judgment: 24 February 1998

JUDGMENT OF THE COURT DELIVERED BY ANDERSON J

This is an appeal against a sentence of two years imprisonment imposed in a District Court on 12 September 1997 in respect of a count of cultivating a prohibited plant, namely cannabis plant, contrary to s 7 of the Misuse of Drugs Act 1975. The appellant pleaded guilty on arraignment but by counsel indicated at the time of conviction that some of the facts alleged by the Crown were disputed. Accordingly a date was set for hearing the evidence in dispute and determining the facts for the purpose of sentence. The facts as found by the sentencing Judge are not amenable to challenge on this appeal, as counsel for the appellant acknowledges. They are essentially as follows.

The appellant, along with his de facto partner, her mother and some children were living on a 107 hectare farm near Kaitaia. The appellant and his de facto partner had bought this farm in 1996 and grazed on it 10 cows and a number of calves. In March 1997 a police spotter plane working on the Northland phase of an aerial cannabis recovery operation observed plots of cannabis growing on the land in various places, but all under cover of native bush, which commenced about 150 metres from the appellant’s dwelling. The entire area of bush was cordoned off with an electric fence powered from the appellant’s utility shed and the plots, seven in all, were connected by clear quad tracks and walking tracks back to the appellant’s dwelling. In each plot the male plants had been culled and the remaining female plants were in some cases seedless and in others seeded. Cultivation involved string supports for lateral growth, fencing, opossum traps and/or cyanide paste, and the fact that each plant had been bedded in potting mix, weeded, watered and fertilised. When interviewed the appellant admitted that he had grown the cannabis, although he later disputed that any more than some 30 plants were his own. The sentencing Judge determined after hearing evidence that the appellant had cultivated all the plants. They numbered 321 and ranged in height from about 1.5 metres to over 2 metres. Most, it seems, were about 6-8 weeks from maturity.

The appellant was effectively a first offender and was regarded as such by the Judge. In June 1997, i.e. about three months after arrest and two months before arraignment, the appellant volunteered for admission to and was accepted by Higher Ground, a drug rehabilitation trust whose valuable work in the community is well known to and appreciated by members of the professions of medicine and justice.

At the time of sentencing the Judge had before him a report from Higher Ground indicating a diagnosis of cannabis dependency according to internationally recognised criteria and that the cognitive emotive and behavioural patterns associated with drug dependencies of cannabis and alcohol were strongly present. The report recommended completion of treatment at Higher Ground and observed that his behaviour was consistent with the commencement of recovery which, in the light of experience and research in the area, indicated at least two years post discharge

recovery before full integration of behaviour. It observed that during such period the appellant would remain vulnerable for relapse.

Having regard to the sentencing approaches identified in R v Dutch [1981] NZCA 44; [1981] 1 NZLR 304, and consistently applied by the Courts thereafter, the sentence of two years imposed in this case is clearly within the range available in all the circumstances to the sentencing Judge. Counsel for the appellant acknowledges this and has focused his submissions on the argument that the two year sentence should have been suspended with provisions for permitting and encouraging the appellant’s rehabilitation for drug dependency.

In his sentencing remarks the Judge identified and gave credit for all facts which the appellant might relevantly invoke. These include the plea of guilty and the initial co-operation with the police; expressions of remorse and apology; the voluntary undertaking of rehabilitation; and of course the fact of being virtually a first offender. The Judge felt unable, however, to accede to the plea for a suspended sentence which is a sentencing option available to be used in cases of moderately serious offending where it is thought there is a sufficient opportunity for reform and a need to deter others is not paramount.

He considered that in this particular case the number of plants took the case outside a description of moderately serious offending, being in fact serious offending; that the personal circumstances of the appellant were not significant factors in sentencing for more serious drug charges, as this Court has observed on many occasions; and that the imperatives of appropriate punishment and deterrence out- weighed considerations of rehabilitation.

The nature and size of the cultivating operation in this case places it clearly within the second category of such offences identified in R v Dutch (supra). Such second category offending is inherently serious and the general level of sentence approved by this Court for such offending is between two and four years imprisonment for a principal party or initiator. Clearly here the mitigating factors

identified by the Judge account for a sentence at the lower end of that range but the factors which so mitigate are of less weight in connection with the issue of suspension of the sentence. For this type of offence on this scale the considerations of deterrence of others and punishment of the offender do and must carry significant weight. As to rehabilitation, we do not consider this to be a case where greater emphasis on rehabilitative aspects of sentencing are warranted in furtherance of an attempt to break the cycle of persistent drug related offending by rehabilitating the dependency which actuates such offending. Here the dependency is a personal characteristic reasonably disjunctive of the offending which was plainly for commercial gain. In the result we are not persuaded that the sentencing Judge was wrong in determining that the sentence of imprisonment should not be suspended.

We conclude this judgment with an observation made pertinent by references in the course of evidence to determine the disputed facts for sentencing, and in the sentencing notes themselves, about the value of the plants. Mr Cassidy informed us that the question of value was raised by the Judge in the course of the evidence without his expecting such matter to be broached and without the issue being reasonably anticipatable because no reference to value had appeared in the prosecution caption and because the sentencing principles elucidated in cases such as Dutch do not have regard to questions of plant value. We think that attempts to assess value for sentencing purposes will be of little assistance. The approach indicated in Dutch involves an assessment of the size and nature of a cultivating operation and the categories identified in that judgment are pragmatically broad. When opinions as to value, if at all valid, would require expert evidence which takes account of all the contingencies between the planting of the seed and the harvested packaging of the crop, we are reinforced in our view that the broad categories defined by reference to nature and size of operation are the appropriate criteria for degrees of seriousness. We have approached the determination of this appeal accordingly.

For the reasons given the appeal is dismissed.

Solicitors:

Crown Solicitors Office, Auckland