THE QUEEN v HENRY REWHA [2000] NZCA 219 (28 September 2000)

IN THE court of appeal of new zealand

ca 252/00

THE QUEEN

V

HENRY REWHA

Hearing:	25 September 2000 (at Auckland)
Coram:	Heron ACJ Tipping J Anderson J
Appearances:	W N Dollimore for Appellant A J F Perkins for Crown
Judgment:	28 September 2000

judgment of the court DELIVERED BY HERON ACJ

[1] The appellant appeals against his conviction and sentence for possession of a Class C controlled drug for the purpose of sale contrary to S.6(1)(e) of the Misuse of Drugs Act 1975 following trial by jury.He was sentenced to three years imprisonment.

[2] The evidence is in a narrow compass.On 25 November 1999 the appellant drove into the Huntly Hotel carpark and was there stopped by police who said they could smell marijuana and wanted to search his car.The appellant admitted he had been smoking cannabis in the car approximately half an hour before that.He and his car were then searched.Inside a black leather spectacle case there were five cannabis tinnies and from a black belt bag which he had been wearing a further 17 tinnies were found.A small quantity of loose cannabis leaf and a cannabis pipe were also in his possession.The total weight of all cannabis found in his possession was 30.9 grams.

[3] He told the policeman immediately that the cannabis was for his own use and after the appropriate cautions he was taken to the Huntly Police Station, and at interview repeated that he had smoked in the car earlier that day and smoked on an average day the contents of about four tinnies.He said the five tinnies in the spectacle case had cost him $20 each.He was asked if he wanted to offer any explanation for being in possession of 22 tinnies of cannabis and other quantities of cannabis material.He replied they were for his personal use and declined to answer further questions.

[4] The detective thought that the tinnies had not been opened since they had been rolled having regard to the appearance of the tinfoil and that the cannabis itself was of good quality.The detective gave evidence as to how cannabis is often packaged for ready sale.He considered that tinnies were by far the most common way cannabis is purchased for one's own use but any more than one or two tinnies in possession would be a good indicator that the possession of them was for sale.

[5] Papers used for smoking cannabis were found in the bag.The detective maintained that he thought that the appearance of the tinnies suggested they had not been unwrapped when they were first discovered.The detective agreed that there was no tick list found on the appellant which was a written record of weights or quantities of drugs and prices paid where they have been sold to people on credit.Plastic snap bags which were commonly used in selling cannabis were not found.The appellant's fingerprints had been found on the inside of some of the tinfoil inviting the inference that it had not recently been purchased from another source but that he had wrapped it up himself in preparation for sale.

[6] In summary the Crown case was that the circumstances surrounding his possession gave the lie to his assertion that the cannabis was for his own use. It pointed to the number of tinnies in his possession of which eight, the appellant claimed, had been acquired that day when he was already in possession of another 14 in a separate container suggesting this was in fact a stock of cannabis for sale.Other loose cannabis found in other containers could have been, by way of distinction, cannabis for his own use.These were all matters of fact for the jury from which to draw the appropriate inferences one way or the other having regard to the onus of proof which, due to the quantity of cannabis material in his possession fell on the appellant.

[7] The appellant gave evidence and confirmed the various amounts of cannabis that had been found in his possession.He agreed that purchasing cannabis in tinnie form for his own use was an expensive way of purchasing cannabis but he repeated that he preferred to buy tinnies to see how much he was taking in any one day, and if the cannabis was in a bag he would tend to smoke it all, such was the extent of his habit.He maintained his earlier denial that he was in possession of cannabis for the purpose of sale.

[8] Complaint is made by the appellant of the Judge's summing up which was said to be unfair and lacked balance.After dealing with the presumption contained in S6(6) Misuse of Drugs Act 1975.The Judge said:

The accused has to be able to point to some evidence and say "That evidence must leave you in a position where you consider that on the balance of probabilities it is more likely than not I (he) did not have any of that cannabis for the purposes of selling."He does not have to have as his purpose to sell all the cannabis, just that he has as a purpose to sell any part of it. So you might think - and it is a matter entirely for you - that he was going to sell a few of the tinnies and perhaps smoke some of the cannabis in the film canister himself.

[9] As the passage reveals, the Judge was directing the jury on what was an important matter of law in this case namely that the purpose behind possession does not have to be to sell all the cannabis found in possession and an intention to sell part of it is sufficient.On the facts in this case that was plainly a likely scenario.The Judge left it to the jury by the words he used and then went on to discuss the standard and onus of proof.He had earlier told the jury that any view he expressed as to guilt or innocence were to be disregarded.We see no unfairness in what the Judge said in this respect.

[10] Then the Judge said:

Second, Mr Dollimore said "Where is the cash?Where are the scales?Where is the tick list?"There is simply no evidence to point to the fact that drug dealers always have scales, tick lists and large cash amounts on them.And if there was evidence to that point, then the inquiry raised by Mr Dollimore might have some validity, but it does not.There is simply no evidence that cannabis dealers always have these items with them.So again that does not assist you either.

[11] Earlier the detective had agreed that no large quantities of cash, no snap bags or scales or any tick lists had been found either in the appellant's house or car and these indicia were common in the case of dealing in cannabis or that was an inference that could be reasonably drawn.

[12] Whilst the Judge was strictly correct to say that there was no evidence to point to the fact that drug dealers always have these items the defence had directly and inferentially established that such possession was not uncommon nonetheless and their absence in this case may have been a pointer for the jury away from a conclusion as to dealing and more to one of possession for own use.The Judge had in the event excluded it as not for consideration because there was no evidence that all dealers would always have such indicators of dealing in their possession.Importantly he had said that such matters did not assist the jury.

[13] By directing the jury in this way it can be argued that the Judge had incorrectly excluded evidence of a circumstantial kind from the jury's consideration.We have been concerned at such a forthright rejection by the trial Judge of evidence which may well have assisted the jury and we reject the Judge's suggestion that there was no evidence to that effect.Plainly there was, and in a case which depended on circumstantial evidence and balancing the relevant factors such a direction could in some cases well result in a miscarriage of justice.

[14] In our view however, the nature and description of the undoubted circumstances surrounding the appellant's possession lead to a very strong conclusion that part of the cannabis in possession was for the purpose of supply.The absence of usual or customary indicia of dealing although relevant and entitled to be put to the jury, carried, in our view, much less weight than the direct evidence of the state of the packaging and the number and location of tinnies in the appellant's possession at the relevant time.

[15] Furthermore the appellant gave evidence of the events and his cannabis addiction and the jury had the opportunity of considering the explanations which he gave but rejected them.

[16] Whilst concerned that the Judge should both wrongly analyse the effect of the evidence and direct the jury to disregard an aspect of the defence case accordingly, we cannot in the circumstances of the case consider there had been any miscarriage of justice.The jury, before anything else, had to be satisfied of the accused's explanations which he gave in evidence and plainly were not so satisfied.The appeal against conviction must be dismissed.

Sentence

[17] Sentencing in this area has been the subject of recent cases and in particular R v Terewi, R v Hutchings [1999] 16 CRNZ 429.Whilst that case focused to a large measure on cultivation, in Hutchings various sentences give some guide to the approach to be taken.

[18] Clearly the dealing here was at a low level and the overall value of the tinnies was in the region of $400-500.Mr Perkins acknowledged that a low level of dealing can give rise to a lower starting point than the two years fixed in R v Terewi.He submitted however that the appellant's earlier convictions for cultivation and possession in 1994 for which he received a sentence of one years imprisonment, required a higher sentence and three years was justified in order to address the extent of his reoffending. We are of the view that three years is too much for the circumstances of this case and the low level of dealing combined with undoubted own use of the cannabis in possession required a sentence of no more than 18 months.We accordingly allow the sentence appeal, quash the sentence of three years and impose a sentence of 18 months.Leave to apply for home detention is declined.

Solicitors:

Crown Solicitor, Auckland