THE QUEEN v ANZAC GEMMELL [2001] NZCA 273 (23 October 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca271/01

THE QUEEN

V

ANZAC GEMMELL

Hearing:	23 October 2001
Coram:	Elias CJ Tipping J Paterson J
Appearances:	A P Dreifuss for Appellant D J Boldt for Crown
Judgment:	23 October 2001

judgment of the court DELIVERED BY ELIAS CJ

[1] Anzac Gemmell pleaded guilty in the District Court before a depositions hearing began to one charge of cultivating cannabis and one charge of having a firearm with him while committing the crime of cultivating cannabis.On the first charge, laid under s9 of the Misuse of Drugs Act 1975 he was liable on conviction to imprisonment for a maximum term of 7 years.On the firearms charge, laid under s198B(1)(b) of the Crimes Act 1961 (which requires the circumstances prima facie to show an intention to use the firearm in connection with a crime) he was liable to imprisonment to a maximum term for 10 years.

[2] The District Court declined jurisdiction.The appellant was accordingly sentenced in the High Court.The sentence imposed was 5 years on each charge, the terms to be served concurrently.There was also an order for destruction of the firearms and ammunition.From this sentence the appellant appeals.It is contended on his behalf that the sentence imposed was manifestly excessive.

Facts

[3] The appellant was arrested after police had carried out surveillance for some days on a remote cannabis plantation in a forest.The plantation contained 329 plants, all female.The plants were said in the summary of facts to have been of good quality and well tended.The police estimated the value of the cannabis upon harvest to be in excess of $330,000.

[4] The appellant has a number of previous convictions including for possession of an offensive weapon in 1998, for which he was imprisoned for 10 months and 3 convictions under the Misuse of Drugs Act.He has further driving convictions and convictions for breach of periodic detention.

Sentence in the High Court

[5] In the High Court the sentencing Judge acknowledged that the guilty plea entitled the appellant to a reduction in sentence.He indicated, however, that he would treat the guilty plea as having been entered into at the midpoint of the usual criminal process, the appellant having pleaded guilty on the morning upon which depositions were called.

[6] The Judge identified the aggravating features of the offence as the number of plants and their value, the fact that two firearms had been used, the disguise of the appellant (who had been wearing a balaclava when confronted by the police) and the appellant's previous convictions.The Judge identified the only mitigating feature as the guilty plea.

[7] The Judge referred to the Court of Appeal decisions in R v Terewi [1999] 3 NZLR 62.He referred also to the decision in R v Percy (CA89/00, 14 June 2000), a case of use of a firearm in connection with cultivating cannabis, but laid under the Arms Act, not the Crimes Act.In R v Percy the Court of Appeal expressed grave concern about the possession and possible use of firearms by those involved in guarding cannabis cultivation.An 18 month prison sentence in that case was upheld on appeal, the Court of Appeal affirming the importance of deterrent sentences in such circumstances.The sentencing Judge in the present case agreed with that approach.He placed the cannabis cultivation offending "plainly within category 3 in Terewi".A starting point of "at least 4 years" was accordingly appropriate.

[8] The Judge concluded that:

Having regard to all those circumstances, in the Court's view Mr Gemmell is plainly well within category 3 in Terewi.A starting point of at least 4 years is accordingly appropriate.There are the aggravating factors to which reference was earlier made and against which there is some limited discount for the plea of guilty.In this Court's view the appropriate length of imprisonment to impose on Mr Gemmell on the cultivation of cannabis charge is 5 years' imprisonment.As far as the charge under s198B is concerned, having regard to the factors discussed in this judgment, the Court takes the view that that offence too warrants a sentence of imprisonment of 5 years and that term is accordingly imposed, those terms to be concurrent. There will be an order for destruction of the firearm and ammunition.

The Appeal

[9] In his submissions, Mr Dreifuss contended that the sentence imposed insufficiently reflected the appellant's guilty plea at an early stage.The Judge had not indicated a starting point for the offending and it is was difficult to know what the starting point was and therefore what discount had been given for the plea.Mr Mr Dreifuss submits that a discount of 30% would have been appropriate.The Judge declined to give a full discount on the basis that the guilty plea was entered into at what was approximately the midpoint of the usual criminal process.It is submitted on behalf of the appellant that such approach was wrong:the plea was entered at the first practicable opportunity after disclosure had been made by the police in circumstances where the District Court sits once a month only in Wairoa.

[10] It was also submitted that the sentencing Judge wrongly inferred from the guilty plea to the firearms charge that the intended use of the firearm was to protect the cultivation of cannabis from other people.That is said to be the inference drawn from the sentencing Judge's reliance on the decision of the Court of Appeal in R v Percy.It is submitted on behalf of the appellant that there was no occasion to draw such adverse inference:the appellant's acceptance of guilt was on the basis that the firearm was to be used to control goats and police observation of the property confirmed the presence of a number of wild goats.

[11] Counsel for the Crown accepted that while the Judge did not set out the individual starting points for his sentencing, it is apparent that an overall starting point of between 6 and 7 years was adopted.That amount was indicated by the Judge's acceptance (not challenged on appeal) that the scale of cultivation was in the third category identified in R v Terewi and that a starting point of more than 4 years was indicated.It was apparent that the Judge had added an effective 12-18 months to the sentence for the appellant's possession of the firearms.That was said by Mr Boldt to represent a modest recognition of the additional offending.From that sentence it is apparent that the Judge deducted 12-18 months to reflect the appellant's guilty plea.

[12] The Crown contended that the Judge was entitled to treat the plea as delayed.The appellant had waited until full disclosure before entering his plea on the morning of the preliminary hearing.There are no fixed rules as to the appropriate reduction but the appellant should not be treated in the same way as someone who immediately takes responsibility.

[13] On the use to which the firearms were to be put, counsel for the Crown pointed out that the appellant has never said that the weapons were to shoot goats.In any event, the appellant had been declined a firearms licence, an aggravating feature of the offence and the possibility of unplanned use of the firearms meant that the potential for injury or death to others remained.

Decision

[14] We agree that the scale and manner of the cultivation placed this case in the third category referred to in R v Terewi.Mr Dreifuss acknowledged as much.The cultivation was large-scale commercial growing requiring organisation.It is clear from the police surveillance records referred to by Mr Dreifuss without objection from the Crown that others were involved in the activity.Although the appellant is a user of cannabis, there can be no suggestion but that this was anything but a commercial crop, grown for profit. The scale of the operation places it well within the most serious category recognised in Terewi.In that case 4 years marked the suggested lower level of sentencing.It was certainly open to the Judge to take the view that a sentence of 5 years imprisonment was appropriate to mark the criminality entailed in the scale of the enterprise and the culpability of the appellant who had previous convictions for cannabis offending and who was masked when confronted by the police.

[15] It was a seriously aggravating feature of the case that the appellant had the use of two firearms and ammunition.Both firearms were ready for use.In one case ammunition was in the magazine housing of the firearm, although no rounds were chambered.The second firearm had no magazine attached and no ammunition was chambered.It is not necessary to draw any inference of intention or preparedness to use the firearms against another person to conclude that the mix of weapons and organised criminal activity in drug growing is a very dangerous mix which is potentially lethal.That potential is recognised in the maximum sentence provided by Parliament for the offence.The appellant has previous convictions involving firearms and had no licence for them.Those were circumstances which aggravated his culpability in the present case.

[16] The Judge was entitled to take the view that either as an aggravating feature of the cannabis offending or as a stand alone sentence taking into account the principle of totality, the possession of the firearms justified an additional sentence of 12 to 18 months.As the Crown submissions rightly acknowledge, that is the effect of the sentence imposed if allowance had been made for a discount of 1 year to 18 months for the guilty plea.

[17] The Judge did not approach the sentencing in quite this way.Because he did not indicate how the sentence was arrived at, it is not possible to know exactly what discount was allowed for the guilty plea.As indicated in R v Ataria (CA 318/98, 15 December 1998) at 5, it is "usually helpful for a sentencing Judge, in a case where there has been a plea of guilty, to state the starting point reflecting all aspects of the case, except the plea".That is because such process lets the offender see what credit has been given.The appellant seems here to have been under the impression that the Judge did not make sufficient reduction to reflect the guilty plea.In the end, however, the precise process is less important than the sentence actually passed.We are satisfied that a starting point for the overall offending of 6 years was appropriate in the circumstances.An allowance of 1 year to reflect a guilty plea made at what we accept was a reasonably early stage of the proceedings was entirely appropriate.

[18] The appellant has not demonstrated that the effective sentence of 5 years imprisonment was clearly too long.The appeal is accordingly dismissed.

Solicitors:

Rishworth Wall and Mathieson, Gisborne, for Appellant

Crown Law Office, Wellington