THE QUEEN v IAN BRUCE SPOONER [2001] NZCA 267 (26 September 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca239/01

THE QUEEN

V

IAN BRUCE SPOONER

Hearing:	25 September 2001
Coram:	Gault J Keith J Salmon J
Appearances:	A P Dreifuss for Appellant AJF Perkins and T Kupenga for Crown
Judgment:	26 September 2001

judgment of the court DELIVERED BY SALMON J

[1] Mr Spooner appeals against a sentence of three years' imprisonment on charges of possession of cannabis for supply and cultivation of cannabis.He pleaded guilty to the cultivation charge and was found guilty by a jury on the charge of possession for supply.

[2] The appellant was growing cannabis at two addresses in Gisborne.At Ida Road, where he lived, he had partitioned a shed and was growing cannabis behind the partition using lamps, transformers and a ducting system.At Sheehan Street, in premises rented by his partner, he again had a sophisticated growing system using lamps, transformers, ducting, thermometers etc.In all there were 300 plants, some of them mother plants from which cuttings were taken.At Sheehan Street the plants appeared to be growing on a rotation basis, so that multiple harvests could be achieved.In addition to the growing plants, some 770 grams of dried cannabis was found.The head material from the dried cannabis weighed 525 grams.The evidence was that at a conservative bottom value of $250 per ounce the value of that dried material would be $4,500.The detective who gave evidence of value assessed a conservative value for the growing cannabis, when mature, of $60,000.The total is $64,500.In cross-examination the detective agreed that if the yield from the growing plants was the same as the yield from the dried plants, the value of the growing plants would be $28,616.If one then adds to that the value of the dried material, the total is about $33,000.The sentencing Judge was prepared to accept, for the purposes of sentencing, a value in the region of $28,000.

[3] Appellant maintained that he was growing for his own use.The Judge made an allowance of $5,000 worth of cannabis for personal use.The Judge referred to the Court of Appeal decision in R v Terewi [1999] 3 NZLR 62 and placed the offending at the higher end of category 2.He noted as mitigating factors, the appellant's substance abuse problems, the fact that he was looking after his children and helping look after the children of the woman with whom he was in a relationship.He identified aggravating factors as three previous cannabis convictions, the relative sophistication of the growing systems, with the number of plants and the harvested cannabis all pointing to an on-going operation.He took a starting point of four years and gave a discount of one year for the mitigating factors referred to.

The Appeal

[4] There are two matters raised on the appeal.The first is that the District Court Judge made an insufficient allowance for personal use.The second is that, in the circumstances, a suspension of prison sentence under s.21A of the Criminal Justice Act 1995 would be appropriate.

[5] As to personal use counsel noted that at a value of $250 per ounce, $5,000 would allow for 20 ounces.In his evidence the appellant said that he and his partner consumed approximately 20 to 25 grams of cannabis per day, which is about three-quarters of an ounce.Counsel also relied on the evidence of a detective with expertise in drug related matters, who he said acknowledged that it would be reasonable for a person in the appellant's circumstances to consume a quarter of an ounce a day.In fact what the detective responded to was a question as to whether if Mr Spooner and his partner were both consuming cannabis and sharing it with a few mates who come around during the day, a quarter of an ounce would be a reasonable figure to use and he accepted that.

[6] On the basis of consumption of a quarter of an ounce a day counsel calculates that annual consumption would be 91¼ ounces valued at $22,812.50 and that given a crop value of $28,000 the commercial quotient was thus $5,187.50.He submits that the allowance for personal quotient should be based on the evidence rather than a discretionary figure being arrived at with no evidential foundation.He referred to R v Fenton (CA247/99, 11 October 1999).

Decision

[7] We do not accept the proposition that supply to a partner and a number of mates can be categorised as personal consumption.The appellant's own evidence as to his personal consumption lacked credibility.He said that he and his partner would consume approximately 20 to 25 grams of cannabis per day.Crown counsel estimates that would make some 60 to 75 cigarettes.It is straining credibility to suggest personal consumption for even two people of anywhere near that figure.

[8] On the basis of the jury's conviction and on the basis of the amount of cannabis involved, the Judge was right to regard appellant's undertaking as a substantial enterprise with a large supply component.The Judge's finding that most of the cannabis must have been for the purpose of supply was one that was open to him given the evidence and the verdict of the jury.

[9] In R v Terewi (supra) the Court described category 2 offending as encompassing small-scale cultivation of cannabis plants for a commercial purpose, i.e. with the object of deriving profit.The starting point for sentencing in such a case is generally between two and four years, but where sales are infrequent or of a very limited extent a lower starting point may be justified (page 65).

[10] There is no direct evidence of selling in this case, but given the quantities involved there is a strong inference that sale was intended.Even regular supply for no monetary consideration to other people is likely to involve some reciprocation and thus, a commercial element.The comments of this Court in R v Pure (CA359/00, 20 February 2001) are relevant:

We do not accept that the scale and sophistication of cultivation is relevant only for determining the appropriate Terewi category.Those categories are defined in very general terms and encompass in each case varying culpability which will attract sentences across the ranges indicated.The scale and methods of cultivation are to be taken into consideration also in determining the appropriate sentence within the categories. (para.10)

[11] The nature and scale of this operation bears repeating.There were 300 growing plants in total at the two addresses.The cultivation method adopted allowed for a crop every 90 or so days.The appellant claimed that he was only intending to grow the one crop for his personal use, but that hardly seems consistent with the financial investment in the systems used to grow the cannabis or the extent of the operation spread, as it was, over two premises. The value taken for sentencing purposes was conservative.The value of the dried material combined with the mature value of the growing plants might have been as much as $64,500 and that is for just one crop.The combination of all these factors justify the Judge's finding that the starting point for sentencing should be at the upper end of category 2.

[12] Given the aggravating factors which the Judge identified, a four year starting point was appropriate, as was the reduction of one year.Accordingly, we uphold the sentence of three years' imprisonment.That being so, no question of suspension arises, but even if the appropriate sentence had been two years' imprisonment suspension would be inappropriate.As the Court said in Terewi deterrence is a major factor in sentencing on drug charges. This cultivation was on much too large a scale to warrant suspension in the circumstances of this case.We are not persuaded that the efforts which Mr Spooner is said to have made to break his substance abuse problem are such as to justify the Court in holding that deterrence is not a relevant factor in sentencing in this case.We repeat, this was a substantial and sophisticated operation.

[13] The appeal is dismissed.

Solicitors:

Rishworth Wall & Mathieson, Gisborne for Appellant

Crown Solicitor, Auckland