The Queen v Terewi [1999] NZCA 92; [1999] 3 NZLR 62; (1999) 16 CRNZ 429 (25 May 1999)

Last Updated: 1 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA113/99

THE QUEEN

V

MARIA DALLAS TEREWI

CA439/98

THE QUEEN

V

RONALD PETER HUTCHINGS

Hearing:	6 May 1999 (at Auckland)
Coram:	Blanchard J Anderson J Robertson J
Appearances:	M S Gibson for Terewi C M Clews and T I Clarke for Hutchings M J Thomas for Crown in CA 113/99 C B Cato for Crown in CA439/98
Judgment:	25 May 1999

JUDGMENT OF THE COURT DELIVERED BY BLANCHARD J

[1] The Court has heard argument successively on two appeals against sentences for offending against the Misuse of Drugs Act 1975. Ms Terewi has been convicted of cultivation of cannabis and possession of cannabis for supply. Mr Hutchings has been convicted of cultivating cannabis, selling cannabis (two charges), offering to sell cannabis, possession of cannabis for sale, producing cannabis oil and supplying cannabis oil (three charges).
[2] We take this opportunity of reviewing the tariff case of R v Dutch [1981] 1 NZLR 304 in the light of developments since that case was decided in August 1981. In a schedule to this judgment we set out summaries of a number of decisions of this Court which are useful examples of typical situations of offending for financial gain and the sentences imposed. We are grateful to Crown counsel, Miss Thomas, for compiling this material.
[3] In reviewing sentencing levels, although we are conscious that there has been an increase in cannabis cultivation and dealing, particularly involving the growing of plants indoors for purposes of sale, the Courts are necessarily constrained, in respect of the most serious offending, by the existence of a maximum penalty of seven years imprisonment (s9(2)). That maximum penalty was considered appropriate by Parliament in 1975 and has not been amended since that time. The minor anomaly that this penalty is lower than the maximum eight years for selling cannabis, which this Court remarked upon in Dutch, still exists.
[4] It remains appropriate to divide cannabis cultivation offending into three broad categories:

Category 1 consists of the growing of a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. Where there have been supplies to others on a non-commercial basis the monetary penalty will be greater and in more serious cases or for persistent offending a term of periodic detention or even a short prison term may be merited. (It is to be noted in this connection that there is no separate offence in relation to a class C drug of supplying or possession for supply, as opposed to selling or offering for sale or possession for sale (s6(1)(e) and (f)).

Category 2 encompasses small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point may be justified.

Category 3 is the most serious class of such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.

[5] As the Court remarked in Dutch (p308), “the border-line between each class may in specific cases be indistinct and sometimes incapable of exact demarcation”. We have avoided specifying numbers of plants for each category as was done in Dutch because we consider the numbers given there (“scores or hundreds” for category 2 and “1000 plants or more” for category 3) although relevant are no longer themselves an adequate guide where intensive cultivation methods are being employed with a view to enhancing the yield of usable cannabis – either by increasing the number of crops beyond what would occur naturally or by producing plants with higher narcotic levels. For example, by means of indoor growing systems the growth and harvesting of plants can be speeded up, reducing the cycle from four to six months to 40 to 45 days. And in the hydroponic method, plants not only mature earlier but also contain significantly increased levels of tetrahydrocannabinol.
[6] It will be helpful to sentencing Judges if prosecutors bring evidence of the likely amounts of annual gross revenues, or turnover, obtained by the offender from a cannabis growing operation or which the offender must have anticipated deriving from the activity. That will reflect crop cycles and yields and will be a better measure of the size of an operation than simple reference to the number of plants which have been found. The sentence should also take into account the period over which the offending has continued.
[7] We have been assisted by an affidavit of a police officer with particular expertise in illegal drug matters. He deposes that over recent years police have seen a dramatic increase in cannabis cultivators moving operations indoors. Whereas the onset of winter interferes with outdoor plantations, year round growing is possible indoors using containers of soil or a hydroponics system.
[8] In the affidavit the Court was told that the yield from one plant grown indoors is likely to range from two to six ounces of premium grade cannabis and greater yields are possible. There could be as many as nine harvests per year (a 40 day cycle). The police officer said that prices for ounces of cannabis leaf material (cabbage) range from $50 to $100 and the prices for ounces of premium quality cannabis (heads) range from $250 to $400. It should be emphasised that there was no cross-examination on the affidavit and the Court should not be taken to have accepted these figures. We received them more as an indication of the possibilities. In each case the Crown should produce likely figures for the particular situation. We have referred to these figures, not so they will be used as a guide, but rather to alert sentencing Judges to the potential yields and profits from sophisticated production methods. Even if a conservative view is taken of the figures referred to, there appears to be potential for several thousand dollars worth of production from each indoor plant on an annual basis.
[9] It may well be that the penalties imposed in some of the cases listed under Category 2 in the schedule to this judgment would appear very lenient if re-examined bearing in mind these factors. It is also to be remembered that many of them were unsuccessful appeals by the offender where possibly a higher penalty might not have been disturbed.
[10] We also have not yet mentioned particular monetary values for Categories 2 and 3, partly because the borderline is necessarily somewhat arbitrary but primarily because annual revenues, and thus the measure of the scale of an operation, need to be considered in dollars of the day. Obviously, the monetary amounts referred to in Dutch have long been superseded.
[11] We consider that, in 1999 values, annual revenues of more than $100,000 (in cash or kind) will place a cultivation operation clearly within Category 3 but the differences in penalty may not be great where cases are close to the border-line. The division between the categories is merely a means to give a guide to penalty in relation to a particular position on the scale of offending.
[12] We stress also that these indications relate to the starting point before aggravating features (like previous drug offending) or mitigating features (like a guilty plea).
[13] As with any drug offending for the purpose of profit making, the personal circumstances of the offender whose activities fall within Categories 2 and 3 are usually not to be given much significance in the sentencing process. The fundamental requirement is that the sentence imposed should act as a deterrent to other persons minded to engage in similar activity.
[14] This brings us to the question of suspended sentences. The Court has the impression that some Judges, especially in District Courts, are making it their practice to suspend sentences for cannabis cultivation and dealing falling at the lower end of the second category where they consider that the appropriate prison term comes within the range specified in s21A of the Criminal Justice Act 1985. (It should go without saying that it is impermissible to reduce the proper term in order to bring it within that range.) The power to suspend such sentences should not be used in cases involving any commercial element unless the circumstances are exceptional, such as where the amounts involved are very small or there are unusual personal circumstances of the offender which deserve to be given more than the normal weight in drug cases.
[15] The paramount consideration is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country. Others who might be contemplating becoming involved in cannabis production or dealing will not be likely to be much deterred when they can see that, if detected, they are likely to escape imprisonment. Section 21A is not intended for such circumstances. It is directed at deterring reoffending by the person being sentenced – “by holding a prison sentence over the offender’s head” (R v Petersen [1994] 2 NZLR 533 at 537), which is not the paramount consideration in sentencing for drug offending. In Petersen this Court said of s21A:

It is available to be used in cases of moderately serious offending but where it is thought there is a sufficient opportunity to reform, and the need to deter others is not paramount. [Emphasis added]

[16] We turn now to the appeals before the Court.

Ms Terewi

[17] Immediately prior to trial in the District Court at Kaikohe Ms Terewi and her partner both pleaded guilty to one count of possession of cannabis for supply and one count of cultivation of cannabis. She was sentenced to two years imprisonment on the possession charge and 12 months imprisonment on the cultivation charge.
[18] The charges arose out of events on 7 April 1998 when the Police observed the appellant and her partner harvesting a number of mature cannabis plants. There were 19 cannabis plants in several outdoor locations containing 2-4 plants each. Eight days later the police executed a search warrant at the home of the offenders and found a total of 18.6 pounds of dried cannabis material estimated by the Crown to be worth about $52,000 to $74,000. The sentencing Judge noted that the operation was ‘careful, comprehensive, and relatively sophisticated’.
[19] The appellant is 37 and has been in a relationship with her co-offender, Mr Shepherd, for the past thirteen years. They have three children, all under the age of 10. She has no relevant offending history. The appellant claimed that she never used cannabis and that, while she knew her partner was cultivating cannabis, she had helped him only on the one occasion when she was observed rowing him between cannabis plots, which were on the banks of a river, and that her involvement was peripheral only.
[20] The Judge saw the size of the crop and the sophistication of the cultivation, which included cloning and careful tending of the plants, as well as double cropping, as significant aggravating features. Only limited credit was given for the guilty pleas, which had been made at the ‘eleventh hour’.
[21] The defence argued at sentencing that this case fell within the second class referred to in R v Dutch [1981] 1 NZLR 304, while the Crown claimed that it fell within the third class, which is representative of cases of cultivation on a very large scale.
[22] The Judge concluded that this case fell somewhere between the high end of the second class and the third class in Dutch. He saw the appropriate sentencing range for the principal offender as three and half to five years. The starting point taken for the appellant’s partner was four years, reduced to three and a half years on the possession charge. He was given a concurrent sentence of 18 months on the cultivation charge. In recognition of the appellant’s lesser involvement, she was sentenced to two years imprisonment on the charge of possession for supply and 12 months on the charge of cultivation. Again, that recognised her plea.
[23] In his submissions in this Court for Ms Terewi, Mr Gibson accepted that the effective sentence of two years imprisonment could not be challenged but sought to have it suspended. He argued that although the amount of drugs involved in the possession for supply, and apparently derived from the cultivation, was substantial, her participation was as a secondary party. Mr Gibson argued that his client had been seen playing a role in cultivation on one occasion only and he pointed to her statement that she told Mr Shepherd that she did not want cannabis in the house or plants on the property and was especially uncomfortable with it being around their children. She had no relevant previous convictions and was unlikely to reoffend.
[24] But the Judge had not accepted that the appellant was a relatively passive participant in drug activities of her partner, and it seems to us that the Judge fairly summed up the situation when he said:

...this was by anybody’s estimation a very significant amount of cannabis drying, processed, and in storage in the premises. And that, in fact, I have got to say gives the lie somewhat to your involvement Ms Terewi in this matter because from the photographs that have been shown to me it is clear that the material was located in the dwelling and for you to say that you assisted on only one occasion and not others or was unaware of what was going on largely, is straining credibility.

The Judge did, however, accept that there must be a differentiation between the roles of the two participants that was reflected in the sentences he imposed.

[25] The summary of facts on the basis of which Ms Terewi pleaded guilty indicates that on the occasion upon which she and Mr Shepherd were observed by police harvesting a number of mature cannabis plants on the banks of the river, they were travelling in two vessels, a canoe and an aluminium dinghy. That rather gives the lie to Ms Terewi’s attempt to explain what she was doing on that occasion by saying that her partner was incapacitated after an accident and she was called upon to row him to the cannabis plots.
[26] Like the Judge, we place the totality of the offending in this case by the principal offender near the borderline between Categories 2 and 3. After recognition of his plea of guilty Mr Shepherd received a sentence of 3½ years imprisonment and we were told from the bar that although he lodged an appeal, it has since been abandoned. Ms Terewi appears to have played a lesser part and her sentence was duly set well below that of her co-offender. But the sentencing Judge correctly did not lose sight of the fact that she was being sentenced for involvement in large scale cannabis cultivation and possession for supply. He considered a suspended sentence but rejected it because he was, again correctly in our view, of the opinion that the deterrent aspect must be paramount and prevail over any question of rehabilitation. We reject Mr Gibson’s submission that there was enough deterrent for others in the gaol sentence for the principal offender. Deterrence of those who might think to play subsidiary roles is not likely to be achieved by that means. Cannabis is not difficult to grow in New Zealand and there is considerable temptation because of the substantial money which can be made from growing it, even by secondary participants.
[27] The material before the Court does not suggest that Ms Terewi is strongly motivated to change her lifestyle, notwithstanding her protestations of disapproval of Mr Shepherd’s cannabis growing. We agree with the Judge that there was, in this respect, nothing exceptional in this case.
[28] Ms Terewi’s appeal against sentence is dismissed.

Mr Hutchings

[29] Mr Hutchings was sentenced in the High Court at Hamilton and received an effective term of seven years imprisonment having been convicted on ten counts:

Count 1 Selling cannabis oil 6 months
(1 cap for $20)

Count 2 Selling cannabis oil 1 year
(10 caps for $200)

Count 3 Manufacturing cannabis oil 2 years

Count 4 Selling cannabis oil 18 months
(30 caps for $500)

Counts 6 & 7 Selling cannabis 2 years
(2x4oz @ $1000)

Count 8 Offering to sell cannabis 6 months

Counts 9 & 10 Possession of cannabis oil 1 year
(32 caps) and cannabis leaf
(12 bags) for the purposes of sale

Count 11 Cultivating cannabis 5 years

[30] The sentences for counts 1 to 4 were imposed concurrently and so there was effectively a term of two years for those charges. The sentences for the other counts were also concurrent with one another, and thus an effective term of five years, but were imposed cumulatively upon the two years. Therefore the total sentence was 7 years.
[31] In respect of counts 3 and 11 Mr Hutchings went to trial and was found guilty. On the other counts he pleaded guilty on arraignment.
[32] The sentencing Judge summarised the offending as follows:

From your discussions with the undercover constable it is obvious you were knowledgeable about the local drug scene. Mostly the nature of the offending speaks for itself, from the brief details I have given. You had access to one or more sources of supply of cannabis, from which you manufactured cannabis oil. On this part of the case, that is leaving count 11 aside, you were an active small time dealer, prepared to sell to users, or in bulk to other small time dealers. I do not describe the offences in this way to trivialise them. In themselves they constitute a serious course of offending meriting a significant term of imprisonment. However, they stand apart from the cultivation charge, which was a large scale, sophisticated operation which, making due allowance for some big noting on your part, you expected to yield very significant profits. Together with one or more associates you converted a farm cottage entirely to cannabis growing by the hydroponic method. It was obviously intended as a long-term venture involving the use of artificial lighting, oxygen, extractor fans, humidity and temperature controls, and the extensive use of nutrients. Three crops were found growing in separate rooms, in different stages of development. The total number of plants removed, including seedlings, was close to 1,000. Undoubtedly the objective was commercial gain. Your own conversations reinforce this, if confirmation is required.

[33] We were told by counsel that no estimate of the value of the cannabis cultivation activity was before the Court.
[34] Mr Hutchings is 46. The Judge noted that this was his twentieth appearance on a drug-related charge. He had convictions in 1981, 1987, 1989, 1992, and 1996 for cultivating cannabis. On each occasion but the last he had been imprisoned. The 1992 conviction was in conjunction with convictions for possession for supply of cannabis plant and resin and for manufacturing cannabis oil. The total term of imprisonment imposed at that time was 3 years 3 months. It appears therefore somewhat surprising that when he was convicted again of cultivating cannabis and possession of cannabis oil in 1996, he received a non-custodial sentence. The amount of the drugs may have been small on that occasion. Whatever the reason, Mr Hutchings was treated leniently despite his persistence in offending. When regard is had to his other drug convictions, which we have not mentioned but of which the sentencing Judge took note, it can fairly be said that, as Mr Cato observed in his submissions, the appellant has demonstrated a total disregard for the law. He does not appear to repent of his ways, indeed he seems to remain defiant of the cannabis laws, and there must be a strong likelihood that he will reoffend when released from prison. That factor points in the direction of a stern sentence. As the Judge said, his attitude to drugs poses a danger to the community.
[35] The Judge placed the cannabis cultivation at the lower end of the third class in Dutch but accepted the Crown’s submission that there was an aggravating feature that some of the crop at least would be used for the purposes of manufacturing cannabis oil. We agree with that view. He had already said that he considered that counts 1 to 4 by themselves justified a sentence of three years but he had deducted one year because of the plea of guilty to three of those charges. He then adopted a five year starting point for count 11 (cannabis cultivation) and said that the other offending in the second group of charges (counts 6 – 11) merited an addition of two years. However, if these terms were accumulated and added to the figure for the first group the result, the Judge said, would be of total sentence out of proportion to the culpability involved. He therefore fixed the effective sentence for the second group at five years and made that sentence cumulative.
[36] We heard criticism of the Judge’s methodology but we are not persuaded that when the matter is looked at in accordance with the totality principle the effective seven year sentence can be said to be beyond the range available to him. The Judge properly had regard to the appellant’s very bad record for drug offending. There could be no credit for a guilty plea in respect of the cannabis cultivation. It fell within the most serious category of that kind of offending. Although no evaluation of revenues is available, the appellant must have envisaged significant profit from his drug enterprises because he has stated that it was his intention to use moneys so derived to acquire a small farm.
[37] The appeal of Mr Hutchings is dismissed.

Solicitors
Crown Solicitor, Auckland

S C H E D U L E

Category 2

Case	Judgment Date	Particulars	Sentence
R v Waling CA182/88	26/07/88	Pleaded guilty to cultivation. In the vicinity of the house occupied by appellant there were plantations of cannabis plants. The appellant admitted cultivation of 440 plants.	Sentence of 18 months imprisonment upheld.
R v Abraham CA112/88	13/09/88	Pleaded guilty to cultivating cannabis. 336 cannabis plants located in different plots on a farm among patches of gorse and blackberry. Previous convictions for possession of cannabis. Plants clearly being cultivated for commercial gain. Sawn-off shotgun also found.	The sentence of 18 months imprisonment was upheld.
R v Morris CA296/88	17/11/88	Pleaded guilty to one charge of cultivating cannabis and an associated charge of possession for supply. This was sophisticated commercial operation. The appellant had set up a suburban house as a cannabis hot house. The windows were heavily screened; doors were locked with deadlocks; there was a trap door providing access to the lounge; the rooms were lined with foil and artificially lit and heated. There was spraying equipment and fertilizer. A total of 86 cannabis plants, 3.9kg of dried cannabis leaf, thousands of seeds.	Three years imprisonment upheld.

R v Wood CA388/88	07/04/89	Pleaded guilty to one charge of cultivating cannabis, one charge of possession for supply and one charge of supply. The appellant was the owner of a horticultural property. No criminal history. Four rows of cannabis plants growing in an extension to a hothouse. Maturing plants, stalks from harvested plants, and traces of drying cannabis leaf found. A total of 303 cannabis plants grown in a hydroponic solution.	The sentence of two years imprisonment on the charge of cultivation was upheld.
R v Allison CA54/91	07/08/91	Appellant lived in a remote rural area in the midst of forestry land. 35-45 cannabis plantations in the neighbourhood, 5 of which were in a 2 kilometre radius of his house. Nearest of plots contained 133 cannabis plants and from the other four plots another 700. Appellant had been convicted at trial	3½ years’ imprisonment upheld.
R v Phillips CA63/91	O7/08/91	Pleaded guilty to possession of cannabis for supply and cultivation of cannabis. A large quantity of cannabis leaf laid out drying together with six rubbish bags containing dried and drying cannabis. Further quantities were found throughout the property. The total weight of the material was 36.5 kilograms. Two cannabis plants were found growing on the property, as well as a number of stripped stalks. The appellant had two previous convictions for cannabis dealing.	Appellant was sentenced to 4½ years for possession of cannabis for supply and 3 years imprisonment for cultivation of cannabis, to be served concurrently. On appeal the sentence for possession for supply was quashed and substituted by a sentence of 3½ years imprisonment.

R v May and Mansell CA279/91, CA280/91

18/11/91

The appellants pleaded guilty to cultivating cannabis. Two barrels containing processed leaf, fourteen large plastic bags of graded cannabis ready for sale, total weight 10.5 kg. Also 19,000 cannabis seeds. The appellants had dug out an underground area of some 3x5 metres under a sleep-out. The area contained 5 large drying racks and was also used for storing the bulk of cannabis seized. The value of the cannabis seized was conservatively estimated at $45,000. The appellants admitted they had begun to grow 50 cannabis plants. Neither appellant had previous drug convictions.

On appeal sentences of four years imprisonment were quashed and 3 years imprisonment substituted. Court said that starting point of five years for cultivation charge was too high in this case.

R v Leaf CA337/91

11/12/91

Convicted following trial of cannabis cultivation and possession of cannabis for sale. Working as a farm hand on a dairy farm. Appellant helped employer plant out 20 cannabis seedlings in two plots and then helped look after them. It was not suggested that appellant expected to share in proceeds of sale, although employer told appellant that he anticipated a return sufficient to pay appellant’s wages for a year. Appellant also received a quantity of the product for his own use. Appellant was an active but secondary participant.

The original sentence of two years imprisonment for cultivation was considered by the Court of Appeal to be excessive because the appellant was very much a secondary participant who co-operated with the Police to an extent. The appellant had been in prison for approximately four months and his appeal was allowed and supervision with special conditions for two years was imposed.

R v O’Brien 10 CRNZ 618	22/06/93	Pleaded guilty to cultivating cannabis. Plastic trays containing 1,268 cannabis seedlings in a conservatory. Appellant had prior conviction for cultivation of cannabis. The offence in issue in the appeal was committed while on bail awaiting trial on that earlier charge.	Appellant sentenced to 18 months imprisonment on the cultivation charge. This was originally cumulative on a sentence of 4 years and 4 months imprisonment for possession of morphine for supply. Appellant’s appeal against conviction on that charge was allowed and Court had to consider the sentence on the cultivation charge independently. Taking into account a period of 5 months already spent in custody, a sentence of 2 years and 1 month was substituted.
R v Griffiths, Julius, McLaughlin & Gardiner CA291/93, 300/93, 301/93, 302/93, 303/93, 304/93, 309/93	05/08/93	Two appellants found guilty on two counts of cultivation of cannabis. In relation to one of the counts, police on searching a truck had found 96 cannabis seedlings, fertiliser, spades, electric fencing equipment and the like. In relation to the other charge, police searched a bush area behind a house and recovered 82 seedlings growing in 3 bins. Three more seedlings found elsewhere, as well as a buried bucket containing 578g of dried cannabis material.	On Solicitor-General’s appeal the Court noted that sentences of 4 months imprisonment were well below any acceptable level for cultivation and increased them to 12 months.

R v Pavlovich CA388/93	17/02/94	Appellant found guilty of one charge of selling, two of possession for sale, and one of cultivation. Residential property. Police found 19 cannabis plants at various stages of development. In hay-shed four containers of drying cannabis were found, along with some fertiliser bags containing cannabis material, and various other paraphernalia relating to the cultivation of cannabis. In appellant’s car 3 bags of high class cannabis material were found. In total approximately 4.8kg of cannabis material was found. The appellant had no previous convictions.	Sentence of 2½ years imprisonment on the cultivation charge upheld.
R v Jenkin and Povey CA72/95, CA73/94	23/06/94	Pleaded guilty to one charge of cultivating cannabis and found guilty at trial on one charge of possession of cannabis for sale. Envelope containing cannabis leaf material found in kitchen. Two firearms and 50g of cannabis leaf material found in locked bathroom cabinet. 24 mature cannabis plants found. Total of 1,538g cannabis leaf material found in another shed. A .22 calibre air pistol found in bedroom. Appellants were parents of children, including a 7 month old child. They had made “commendable efforts to stabilise their lives”.	On appeal by Solicitor-General non-custodial sentences were quashed and 12 months imprisonment substituted.

R v Merwood (Tovey) CA27/94	23/05/95	Convicted of two charges of cultivating cannabis and one charge of possession of cannabis for supply. She and her husband were cultivating cannabis over two years. Evidence relating to the second year consisted of 10 pounds of cannabis plant material, a parcel of 1 pound of cannabis leaf, 3 half-grown plants in the garden and 11 mature ones in a glasshouse. The second year the total street value of the cannabis was estimated at over $60,000.	Sentence of two years imprisonment and forfeiture of a residential property valued at $76,000 upheld.
R v Haronga CA43/95	15/06/97	Pleaded guilty to one charge of cultivating cannabis. Concealed room converted into a reasonably sophisticated cannabis growing room containing five shelf hydroponic growing system with controlled electric lighting and heating, 16 cannabis plants about 1½ metres high, two further plants that had been cut and were drying. Plant material of 20 grams, two containers of seedlings containing 27 and 46 plants respectively. Also 18 cannabis seeds and equipment for cultivating cannabis.	12 months imprisonment on cultivation charge was upheld.
R v Dunsmuir CA263/95	26/07/95	Appellant pleaded guilty to cultivation of cannabis, possession of cannabis for supply, selling cannabis, and theft. Elaborate cannabis cultivating area in the loft of appellant’s home including hydroponic equipment. 112 plants ranging from 20-90cm found. Also admitted to selling. Annual yield estimated to be $67,000. First offender.	18 months imprisonment on the cultivating cannabis charge upheld. Early plea of guilty and co-operation with police explained what would otherwise be regarded as a lenient sentence.

R v Mason CA456/97	24/02/98	Pleaded guilty on arraignment to cultivating cannabis. He and his partner lived on farm and grew cannabis 150 metres from the dwelling on the property. The entire area of bush was cordoned off with an electric fence, possum traps, etc, 320 plants ranging in height from 1.5 metres to over 2 metres. Appellant was effectively a first offender.	2 years imprisonment upheld.
R v Hill CA17/98	26/03/98	Convicted at trial of possession of cannabis for supply having pleaded guilty to cultivation of cannabis. Growing of cannabis hydroponically at appellant’s flat. Over 500 grams of cannabis found.	The Court upheld two years imprisonment on the charge of cultivating cannabis.

R v Leighton CA24/98

02/04/98

Pleaded guilty on arraignment to cultivation of cannabis and found guilty by jury of possession of cannabis for the purpose of sale. 26 plants 1-1.8m in height found at rear of property. Each had its own water supply. 108 seedlings in various stages of development, including 60 growing in 2 hydroponics units in a shed. Sophisticated arrangement of lighting, air extraction, and water pump with submersible heater. Information on cannabis cultivation also found. 40g of head material found along with other dried cannabis material. Basket containing drying leaf material found, along with a further plant that had been uprooted. In total, 134 plants, and 2,547g dried cannabis material found. This amount did not include any of the drying material found in the basket. Value was difficult to assess, but was in the tens of thousands of dollars.

The Court upheld concurrent terms of 2¼ years for possession for sale charge and 21 months for cultivation.

R v Virbickas CA249/98

15/10/98

Pleaded guilty to one cultivation charge of (50 plants) and convicted after jury trial on a further cultivation charge (607 plants) and a charge of possession for supply. Four previous cannabis convictions.

Appellant sentenced to 2 years imprisonment on cultivation charges, suspended for 2 years. Solicitor-General’s appeal allowed. For cultivating 50 plants the respondent was sentenced to 12 months imprisonment; for the 607 plants 2½ years imprisonment, to be served concurrently.

R v Gurnick CA320/98

04/03/99

Pleaded guilty to cultivating cannabis and found guilty of possession of cannabis for supply. Seven large cannabis plants and five cannabis seedlings together with 10kgs of cannabis leaf. The Judge accepted that the appellant and his partner were chronic cannabis users and a reasonably substantial quantity of cannabis would have been used personally by the appellant.

3 years’ imprisonment upheld.

Category 3

R v Sheahan and Barker 4 CRNZ 651	27/09/89	Pleaded guilty to 2 counts of cultivating cannabis and found guilty on two charges of possession for supply. Farm property in a remote area. Two sophisticated plantations in cleared bush containing a total of 8222 cannabis plants in various stages of growth up to 1m high in nine separate plots. 2kg of drying plant material also found on the property. Value up to $8M. Appellants were sentenced on basis they had been working for wages for principal offender and had been at site for only a few days.	The terms of six months imprisonment were upheld and. Solicitor-General’s appeal dismissed. Court “with considerable hesitation” did not interfere with Judge’s sentencing discretion because of special factors but commented that it might well be that the Crown’s suggestion of 2 to 3 years imprisonment for involvement in an operation on this scale might normally be regarded as appropriate. Emphasised that these sentences were exceptional, and were not to be treated as indicative of appropriate level in other cases where offenders were employed to assist in cultivation.
R v Jeffries 7 CRNZ 655	12/06/91	Police surveillance of a farm property in a remote area discovered two sophisticated plantations in clear bush containing a total of 8,222 cannabis plants in various stages of growth. They were in nine separate plots; each one was hidden in the bush and completely enclosed and roofed over with wire netting. The value of the crop when it attained full maturity would range up to $8m. Pleaded guilty to cultivation and possession for supply. The appellant absconded while on bail and embarked on another cannabis growing operation. Police found at the rear of his house 516 plants in nine small garden plots. They were well cared for with fertiliser, irrigation and a small hothouse provided. Appellant pleaded guilty to cultivation.	6½ years for the first cultivation and possession for supply upheld. 2 year sentence imposed cumulatively for second cultivation upheld.

R v McCormick CA180/94

21/12/94

The appellant pleaded guilty to selling, possession for supply and cultivation of cannabis. Offending over eight year period. 504 plants found in 3 separate plots on appellant’s farm. 235 seedlings found in paddock near house. 200 seeds and 65 dried cannabis stalks found in garage. 41.74kg of dried cannabis plant material found behind garage. 205 dried stalks and further loose plant material found in another shed. 551 more stalks found elsewhere. A further 11.25kg of saleable cannabis material found in another shed. Conservative estimate of total value was $49,000. Over $31,000 cash also found.

Appellant sentenced to 4 years’ imprisonment and fined $200,000. Forfeiture of $31,951.75 cash and land comprised in 3 certificates of title. On appeal, did not challenge forfeiture of cash, but successfully challenged forfeiture of land. Court ordered forfeiture of land comprised in one certificate of title only and ordered appellant to pay the Crown a pecuniary penalty of $67,750. Appellant did not challenge the term of 4 years imprisonment, but did challenge the fine of $200,000. Court found that a term of imprisonment of 4 years may not be adequate unless accompanied by a very substantial fine. Appeal dismissed.