THE QUEEN v CATHERINE ANNE TITO [2001] NZCA 251 (1 November 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca205/01

THE QUEEN

V

CATHERINE ANNE TITO

Hearing:	25 October 2001
Coram:	Elias CJ Tipping J Paterson J
Appearances:	R J E Brown and M M Manhire for Appellant K Raftery for Crown
Judgment:	1 November 2001

judgment of the court DELIVERED BY PATERSON J

[1] Ms Tito pleaded guilty in the District Court to indictably laid charges of possession of cannabis for supply and selling cannabis.The District Court Judge declined jurisdiction and on 10 May 2000, the High Court sentenced Ms Tito to a term of imprisonment of two years and three months.She appeals the sentence on the grounds it was manifestly excessive.

Factual Background

[2] Both the appellant and her partner, Mr Howe, were arrested after the police executed at their home a search warrant under the Misuse of Drugs Act 1975.

[3] A sophisticated indoor cannabis growing operation was located inside a garage at the rear of the address.The appellant was originally charged with cultivating cannabis but this charge was subsequently withdrawn.Mr Howe pleaded guilty to cultivating cannabis and has subsequently been sentenced.

[4] Approximately 2 oz of high quality cannabis head spread out on a piece of paper on the floor next to the bed was located in the main bedroom of the house.Eight separate cannabis tinnies were inside a plastic bag in a side drawer next to the bed.A further cannabis tinnie was found on the dresser in the same bedroom.

[5] The appellant admitted running a commercial cannabis operation for the four months prior to 14 February last.She was a salesperson for the cannabis cultivated by her partner.Her admission was that she had sold approximately 20-25 cannabis tinnies per week at a price of $20 per tinnie.She made approximately $6400 in that period and was on the second cycle of selling at the time of the search.The appellant said that she and her partner were endeavouring to get sufficient money from the sale of cannabis to buy a house.

The High Court sentence

[6] The Judge accepted that the partner was the major force behind the cannabis operation and that the appellant had a secondary participation.However, he saw the appellant's role as being not that far behind her partner's role.

[7] The appellant had a long series of convictions totalling more than 30 since 1975.She was convicted of possession of cannabis in 1984, 1990, 1991 and 1996, the last conviction being while she was serving a suspended sentence.In 1995 she was convicted of selling or offering to sell cannabis.The sentencing notes of the March 1996 conviction noted that the sentencing Judge at that time was concerned on the appellant's behalf at her offending and the likelihood that she would continue to offend.The sentencing Judge, on the current charges, noted that the District Court Judge's hopes had not been realised.

[8] The Judge noted that the Probation service saw the appellant's motivation to reform herself as low.He found some difficulty in accepting that the appellant was not involved in the cultivation considering the relatively sophisticated system which was in operation in the house.

[9] Although noting that R v Terewi [1999] 3 NZLR 62 was slightly different, in that it referred to possession for supply and cultivation, the Judge noted that in terms of Terewi, the appellant was probably towards the top of category 2, a relatively small scale cultivation for commercial purposes and the bottom of category 3 which is the more major commercial operation.He considered a starting point as something in the order of two to three years imprisonment.Aggravating factors taken into account were the sophistication of the growing operation, the fact it was the second cycle, the cash potential to be derived from this operation, the profit she would make and her previous history which he found to be a considerably aggravating factor.

[10] The Judge took into account the early pleas on the two charges, the appellant's co-operation and her family circumstances, although he noted that personal circumstances played little part in sentencing in these cases.Taking into account the aggravating factors, and making maximum allowance for the positive aspects, he fixed the term of imprisonment at two years three months. He did not indicate the amount of the credit given for the guilty plea.

The appeal

[11] Mr Brown, for the appellant, submitted that the appropriate sentence was in the range of 16-18 months and because of exceptional circumstances, it should be suspended.He noted the Judge treated the appellant's role in the cultivation of cannabis to a magnitude greater than it deserved as the cultivation charge against her was withdrawn.The exceptional circumstances relied upon were the needs of the appellant's two children.An eight year old son has been assessed as having alcohol foetal syndrome while a ten year old son is being assisted through the Special Education Service at Tikipunga Primary School.

[12] Mr Raftery for the Crown, submitted that the Judge did not err in the approach he took with regard to cultivation.In reality, this was a cannabis enterprise by two partners.Mr Howe was the cultivator and the appellant the salesperson in a joint commercial operation.In these circumstances the Terewi approach was correct. This is reinforced by the fact that the maximum sentence for each of the charges against the appellant is eight years while the maximum sentence for cultivation is seven years.Mr Raftery also submitted that the position of the children should be given very little weight in a case such as this, particularly as the appellant had been given a chance in 1996.She was then jointly charged with Mr Howe for selling and offering to sell a Class C drug and had been given a suspended term of imprisonment of nine months.Mr Howe had been sentenced to three years three months imprisonment.

Decision

[13] While the appellant was not sentenced for cultivation of cannabis, it would have been unrealistic in the circumstances to have disregarded the cultivation aspect.It was a sophisticated operation carried out on the property in which she lived of which she was the salesperson and her partner the grower.The cultivation was the background to her offending.It was the source from which she obtained good quality cannabis.

[14] The appellant's avowed intention to get sufficient money from the sale of cannabis to buy a house illustrates the commercial nature of the offending. This commercial aspect would, in our view, lead to a starting point of at least two and a half years.The previous history of the appellant made a starting point of more than two and a half years appropriate in this case.We are not of the view that the Judge erred in adopting a starting point of three years, as we assume he did, in view of the sentence which he imposed.

[15] As has been said on many occasions, very little credit can be given for personal circumstances in commercial drug dealing cases.The appellant does have needy children but she had these at the time she was given an opportunity with a suspended sentence in 1996.In the circumstances of this case, a discount of nine months (25%) was in our view appropriate.

Conclusion

[16] The sentence of two years three months was not in the circumstances of the case manifestly excessive.The appeal is dismissed.

Solicitors

Crown Solicitor, Auckland