THE QUEEN v MICHAEL WILLIAM KELLY [2000] NZCA 303 (25 October 2000)

IN THE court of appeal of new zealand

ca 220/00

THE QUEEN

V

MICHAEL WILLIAM KELLY

Hearing:	24 October 2000
Coram:	Richardson P Heron J Baragwanath J
Appearances:	M Appleby for Appellant M J Thomas & B J R Keith for Crown
Judgment:	25 October 2000

judgment of the court DELIVERED BY HERON J

[1] This is an application for leave to appeal a decision of the High Court dismissing an appeal from the District Court imposing a six month sentence of periodic detention.The High Court refused leave to appeal.The appellant in the District Court pleaded guilty of having in his possession cannabis plant material, cannabis oil, cannabis seeds and possession of a pipe, spoon, blades and wire spring for the purposes of smoking cannabis oil, and cultivating cannabis.

[2] The appellant's home was searched in respect of an unrelated matter at Waiterere Beach on 9 February 2000.Five cannabis seedlings were located growing in containers, a large cannabis plant was found in a plastic plant pot. 100 cannabis seeds and 39 grams of drying cannabis plant was found.Two full capsules of cannabis oil and equipment for making cannabis oil was found.The appellant admitted that he was a regular smoker of cannabis.

[3] The appellant is abeneficiary looking after his daughter aged 16 years. He suffers from attention deficit hyperactive disorder and reports were submitted as to that condition at this hearing.He said that he had been smoking cannabis since he was 13 years of age and considered that it helped him in respect of his disorder.He has a previous history having been convicted of similar, if not identical charges between 1994 and 1997 and for possession for supply and cultivating cannabis he served a sentence of one year.

[4] On sentence the Judge said:

Kelly, you have got a 16 year old daughter whose wellbeing you are responsible for, and you have the nerve to come into Court and instruct your Counsel to submit to the Court that you are, by using cannabis, doing nothing which will hurt anyone else.And you have got a 16 year old daughter who knows that you are attending Court, who knows that you are being sentenced for offences under the Misuse of Drugs Act.What else can she take out of your use of cannabis and your attitude to cannabis other than that it is all right for her to use. Now the evidence regarding the effect of cannabis on teenagers, young teenagers, is quite clear.It has an adverse affect on them as far as schooling is concerned, as far as health is concerned, as far as development is concerned.Whatever you decide to do for yourself as an adult is one thing. Whatever you encourage your child to do which is disadvantageous to her is another thing and that is what you are doing to your daughter.There is someone else affected by your use of cannabis and you can protest until the cows come home, Mr Kelly, but that does not change the facts.

[5] The Judge sentenced him to periodic detention for six months and supervision for eight months, directing that he attend for assessment counselling and/or treatment for drug and alcohol addiction as directed by the probation officer.The Judge warned him that his continued use of cannabis might lead to his daughter likewise participating, which would be his responsibility.

[6] On appeal the High Court noted that he was still being assessed for attention deficit disorder and reports had not been advanced to any conclusion in that respect.The High Court noted that notwithstanding the difference on the facts between this case and R v Terewi, CA 113/99, 6 May 1999, he nonetheless fell into the first category mentioned in that case and had received a corresponding sentence.

[7] The Court added:

[6] The Court of Appeal considered that 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 mandatory 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.

[7] Clearly there was a strong punitive and deterrent element in the sentence in this case, no doubt occasioned by the appellant's attitude, especially as regards to his being the sole caregiver of his 16 year old daughter, and his attitude in that respect.No doubt also, regard was had to the conviction of May 1998 where community service was imposed beginning on 7 May 1998 but with no apparent long term effect.

[8] The appeal to this Court is brought pursuant to S.144(3) Summary Proceedings Act 1957 which provides:

(3) Where the [High Court] refuses leave to any party to appeal to the Court of Appeal under this section, that party may, within 21 days after the refusal of the [High Court] or within such further time as the Court of Appeal may allow, apply to the Court of Appeal, in such manner as may be directed by the rules of that Court, for special leave to appeal to that Court, and the Court of Appeal may grant leave accordingly if in the opinion of that Court the question of law involved in the appeal is one which, by reason of its general or public importance or for any other reason, ought to be submitted to the Court of Appeal for decision.

[9] Before this Court Mr Appleby submitted that the sentence of six months periodic detention was manifestly unfair or oppressive and contrary to the provisions of Section 9 of the New Zealand Bill of Rights Act 1990.Further, he submitted that the medical benefits available to the appellant for the use of cannabis and in particular treatment of his attention deficit disorder were such that the sentence should likewise be reduced.The appellant seeks a sentence of community service.

[10] Before us the appellant submitted reports from Dr A B Marks, Consultant Psychiatrist and Dr Patricia Holborow, the latter apparently suggesting that the personal use of cannabis was the best means of treating attention deficit disorder in the circumstances of the appellant's case.None of these aspects of the case were before the District Court or the Judge on appeal and no opportunity for testing the validity of the findings of either proposed witnesses was available.

[11] The wider question of the use of cannabis for medical purposes, such as was considered in the Canadian cases of R v Caine, 1998, BCJ, No.885 and R v Parker, CA C28732, 31 July 2000, is not open here on the material before the High Court where the matter was not explored at all.Such an issue if raised in New Zealand would require the opportunity for evidence on both sides and a fully reasoned assessment in the sentencing court or the court on appeal.

[12] Apart from noting that S.7 and 8, Misuse of Drugs Act 1975, do not in their terms exclude the possession of controlled drugs where genuine medical reasons require it, we do not consider this case as it comes to this Court can give rise to a point of law of general or public importance or for any other reason, which ought to be submitted to this Court for decision.

[13] Accordingly the application for leave to appeal is refused.

Solicitors:

Crown Law Office, Wellington for Crown

M Appleby, Wellington for Appellant