NEVILLE JOHN YATES v THE QUEEN [1999] NZCA 115 (21 July 1999)

IN THE court of appeal of new zealand

ca 227/99

NEVILLE JOHN YATES

V

THE QUEEN

Hearing:	21 July 1999
Coram:	Richardson P Doogue J Goddard J
Appearances:	D. Bunce for appellant S.P. France for respondent
Judgment:	21 July 1999

judgment of the court DELIVERED BY DOOGUE J

[1] This is an appeal against a sentence of 18 months' imprisonment imposed for the offence of cultivation of cannabis (s. 9(1) and (2) Misuse of Drugs Act 1975), the appeal being brought upon the grounds that the sentence imposed is manifestly excessive.

[2] The appellant's premises were searched on 7 August 1998.Inside a bedroom was a large white cabinet which was locked.Inside the cupboard was an elaborate hydroponic system for the cultivation of cannabis.The system included electronically controlled water reticulation, 1,000 watt lighting and ducted cooling.There was also a regulated carbon dioxide feeder, carbon dioxide being supplied from a 1.5 metre cylinder standing beside the cabinet. Forty-two cannabis plants of an average height of 700 millimetres were being grown within the cabinet.An ESR report indicated the total plant material from such plants submitted to it weighed 369 grams.Located in the appellant's bedroom was a small amount of dried cannabis leaf to a total weight of 13.7 grams.

[3] The appellant was 38 years old at the time of the offending and receiving an invalid's benefit.At the age of 13 he suffered serious injuries as a result of a car accident, and in particular head injuries and the loss of a leg.As a result, he suffers from chronic pain, and the sentencing Judge accepted that part of the cannabis cultivated by him was used by him personally for pain relief.

[4] The appellant was originally also charged with possession for supply, but that charge was withdrawn.

[5] The sentencing Judge took the view that, having regard to the number of plants that were being grown and the sophisticated method of cultivation, he could not accept that the cultivation was solely for the appellant's own use. He therefore regarded the appellant's offending as necessarily falling within the second category identified in R v Terewi (CA 113/99, 25 May 1999). After giving credit for the plea of guilty and the personal circumstances of the appellant, he imposed the sentence now under appeal.

[6] The primary submission for the appellant is that the offending lay more easily in the first category identified in Terewi, or, at the most, somewhere between categories 1 and 2.It was accepted for the appellant that the weight which could be attached to mitigating factors was to some extent dependent on the category that the offending fell into.

[7] The first category identified in Terewi consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to any other party occurring or being intended.The second category encompasses small-scale cultivation of cannabis plants for a commercial purpose, that is with the object of deriving profit.

[8] Having regard to the method of cultivation adopted and the number of plants involved, it was clearly impossible for the sentencing Judge to treat the present case as one within the first category in Terewi.

[9] The issue is whether the sentencing Judge was obligated to treat the offending as coming within the second category in Terewi when there was no direct evidence of commercial dealing and the plant material was limited. Despite an invitation by the Judge to the appellant to explain the position, there was an absence of any evidence from the appellant as to the extent of his personal use or as to the disposal of the other plants not needed by him for personal use.Given the number of plants and the method of cultivation, the only possible inference open to the sentencing Judge in the absence of any other explanation was that, despite the limited plant material, the cultivation was for some commercial or semi-commercial purpose as it would make no sense for the appellant to adopt the particular cultivation method in respect of the number of plants involved unless that was the outcome of the cultivation.

[10]However, we are of the view that in placing the appellant's offending squarely within the second category in Terewi the sentencing Judge erred.There was an absence of any evidence before him as to the likely yield from the plants.On the evidence the total cannabis material within the cabinet weighed some 369 grams.That comes nowhere near the average yield per plant discussed in Terewi, even allowing for the plants not being at their final stage of maturity.We have to conclude the appellant's submission that the offending fell within the borderline of the first and second categories in Terewi is correct and that the sentence imposed cannot be sustained.

[11]We are nevertheless satisfied that a prison sentence was inevitable given the extent of the offending and its sophistication combined with the appellant's previous offending of a like nature.

[12]The appellant had previously offended in respect of the cultivation of cannabis in 1991 and 1993 and in respect of its possession in 1987 and 1994 and had been guilty of supplying a class B drug in 1992.He had been subject to non-custodial sentences in respect of all that offending.

[13]The sentencing Judge was asked to consider a suspended sentence of imprisonment, and we have also considered that aspect.Because of the nature of the offending, the previous offending and the appellant's apparent wish to continue using cannabis, we agree with the sentencing Judge such an outcome was, and is, inappropriate.We do note, however, from the pre-sentence report that the appellant is in clear need of assistance.Because of his long-standing injuries, he does not have the usual cognitive skills nor an informed perspective on his cannabis use and alternative forms of pain relief.

[14]We are therefore persuaded the appropriate sentence is a shorter term of imprisonment followed by a sentence of supervision.The sentence of imprisonment under appeal is quashed and in its place a sentence of nine months' imprisonment together with a sentence of nine months' supervision, cumulative upon the sentence of imprisonment, is imposed.It is a special condition of the sentence of supervision, agreed to by the appellant through his counsel, that the appellant undertake such treatment and counselling as is directed by his probation officer.

Solicitors

Crown Law Office, Wellington