THE QUEEN v KAREN PINNINGTON [2001] NZCA 78 (30 March 2001)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca469/00

THE QUEEN

V

KAREN PINNINGTON

Hearing:	28 March 2001
Coram:	Richardson P Anderson J John Hansen J
Appearances:	H S Edward for Appellant H Lawry for Crown
Judgment:	30 March 2001

judgment of the court delivered by JOHN HANSEN J

[1] This is an appeal against a sentence of three years imprisonment following the entry of a plea of guilty to one charge of cultivating cannabis.

[2] The first ground of appeal was that the sentence was manifestly excessive. In written and oral submissions, counsel for the appellant attributed the excessive sentence to the incompetence of counsel.The second ground was inadequate weight being given to relevant mitigating factors.

[3] The appellant needs to show that the conduct of defence counsel led to a miscarriage of justice.The appellant needs to demonstrate "fundamental" or "radical" mistakes: R v Pointon [1985] 1 NZLR 109 is illustrative of the principles.

[4] In November 1999 the police located 9 cannabis plots containing approximately 400 plants in a forest in Whenuakite.These were well constructed, using wire netting, and in some cases electric fence units.At some plots camouflage netting was used to conceal the plots from aerial detection.The plants were fertilised and well cared for, ranging in size up to one metre.

[5] On 15 February 2000 the appellant was identified on video visiting one of the plots and tending to the cultivation of the plants.

[6] On the 17 March the police recovered the cannabis, which was healthy and well cared for.A sample that was taken and dried was used by the police to establish an estimated value of between $200,000 and $350,000 for the whole crop.

[7] The sentencing proceeded on the basis that the appellant was aware of all nine plots located by the police, and her counsel accepted that she was involved, at least to a limited degree, in cultivating and tending those plots.

[8] The appellant pleaded guilty on the 28 August 2000.On the 29 September the District Court declined jurisdiction, and she was remanded to the High Court in Hamilton for sentence on the 31 October.

[9] The basis upon which the appellant was sentenced can be found at paragraph 9 of the sentencing notes:

"It has been submitted on your behalf that in view of your state of health you are not capable of carrying out the heavy manual work which would be required to have planted and constructed these plots.The Crown accepts that your involvement is as a person who has been partly responsible for the tending of the crop and the nurturing of it as it has grown.I accept that there is no evidence that you were the party responsible for planting and initiating the venture but it is accepted that you were aware of the total number of plots. I consider it reasonable to infer that you must have been aware of the extent and value of the crop.You were a willing participant in nurturing this crop, at least to the extent of nurturing from time to time.I accept [counsel's]submission that your involvement was to ensure that the plants were healthy and that the maximum value could be secured from the crop when it was ultimately realised.Having said that, I accept that there is no evidence of any actual or contemplated sale and that none of the trappings of sale were found when a search warrant was later executed at your property."

[10] Effectively, this is a finding that the appellant, while not being instigator of the cannabis growing operation, was aware of its scope and involved in the cultivation activities.

[11] The Judge placed this in category 3 of R v Terewi [1999] 3 NZLR 62, and adopted a starting point of four years.He allowed a discount of one year, to arrive at an effective sentence of three years.

[12] Mr Edward accepted that on the basis the appellant was sentenced, three years was not excessive.That is enough to dispose of the second ground of appeal.However, he submitted that she was sentenced on an incorrect factual basis, and this was occasioned by the incompetence of counsel.

[13] Counsel who appeared in the Court below appeared for both the appellant and her de facto partner, who was to be sentenced for unlawful possession of a fire arm, and possession of cannabis.

[14] In the appellant's affidavit filed in this appeal she said her counsel did not act in her best interest, by allowing himself to act for both herself and her partner.Mr Edward submitted that it was thisconflict that led to counsel in the Court below failing to challenge the summary of facts.

[15] In her affidavit the appellant alleges that hers was a minor role in the cultivation enterprise;she was only tending and weeding one plot.She goes on to say that prior to sentencing she instructed her counsel that she was only involved in tending and weeding one plot, and that she also advised the probation officer of this.

[16] Mr Edward submitted that due to the conflict it was incumbent upon counsel in the Court below to refuse to act for both parties.Further, he said it was essential that the dispute relating to the extent of the involvement of the appellant in the cannabis enterprise ought to have been resolved in the normal way before sentencing took place.

[17] In paragraph 7 of her affidavit the appellant said:

"Prior to sentencing, I instructed [counsel] that I was only involved in tending and weeding one plot which contained 50 plants.I advised him of this on a number of occasions and I also made the same statement to the Probation Officer who interviewed me for the purpose of preparing a Pre-sentence Report for sentencing.While I accept the Pre-sentence Report says that I accept the Police Summary of Facts as read, I am adamant that I advised my lawyer I have never accepted the degree of involvement or knowledge of the extent and sophistication of the cannabis cultivation undertaken in the Coroglen Forest at Whenuakite.Furthermore, the property that I resided at was 3 - 4 miles from the plot that I was found tending and was videoed in.My property does not border the Coroglen Forest but is surrounded by farmland, there is however road access into the Coroglen Forest from my home but as previously stated to get to the plot that I was found in, this is a drive of some 3- 4 miles."

[18] In his affidavit counsel who appeared at sentencing stated:

"4. On receiving my first instructions from Miss Pinnington and Mr Champion, I carefully explained the potential for conflict.

5. After receiving disclosure and viewing the videotape of Miss Pinnington cultivating cannabis, I discussed with Police various options.

6. I went back to Miss Pinnington and explained that Police would withdraw the indictable charge against her husband.This would be done if he pleaded guilty to the summary charges and she pleaded to the single indictable charge she faced.

7. I explained that both she and her partner had different interests.This was done in the presence of both.I explained that this was the only offer made by Police.If she did not accept this, the matter would proceed to trial.I indicated that I could not act for both at trial.

8. We discussed the nature of the charges and the evidence against them both. Miss Pinnington, after discussion with her partner, agreed that her preferred course was to plead guilty.She accepted that there was direct evidence against her and that she could not avoid conviction for cultivation.

9. Miss Pinnington was reluctant to accept responsibility for all the plots. However, she agreed with that other plots were very close to the one she was seen cultivating and that they were constructed using some of the same materials.

10. Miss Pinnington understood that pleading not guilty would mean her partner stood trial with her.

11. She understood that, viewed in isolation, her interests were at odds with Mr Champion's.

12. I invited Miss Pinnington to involve another lawyer if she felt that I could not act in her best interests.

13. Miss Pinnington discussed the matter with her partner.Her view was that there was no point in them both being exposed to the risk of conviction.She indicated that although she understood the potential conflict, she wanted to plead guilty and protect her partner.She accepted that if she wished to deny responsibility, it was likely that she would be convicted at trial of cultivating the extremely similar and proximate plots. "

[19] We have also had the advantage of a statement from Detective Hamilton, dated 27March.That statement reveals that there is no farmland surrounding the appellant's property.It also reveals that the furthest any of the nine cannabis plots are from the appellant's home was 600metres.The closest was 300 metres.

[20] Six of the plots were constructed using the same material.The batteries contained within the electric fence units had the same bar code, indicating they were most likely purchased at the same time.All of these plots had fertiliser pellets scattered around individual plants.

[21] Mr Edward accepted there was at least one error in the appellant's affidavit.This is the statement that the property was surrounded by farmland, which is clearly not correct.

[22] It also appears the appellant is incorrect when she stated the plot she was filmed tending was three to four miles from her property.The statement from Detective Hamilton shows that the plot she was filmed tending was at most some 600 metres from her home.At least four of the other plots were closer to her home.The video was placed at that plot because it was the largest and contained 150 of the 400 plants.

[23] There is something inherently improbable in the appellant tending the largest plot further from her home, but not being involved in tending the others.

[24] As we noted, the appellant's affidavit contains matters that are incorrect.Furthermore, there is a certain coyness in paragraphs 7 and 8 of her affidavit.Compared to the contents of the paragraphs of counsel's affidavit, set out above, hers can only be described as sparse.The credit to be given to her evidence by affidavit is affected by its brevity and inaccuracies.

[25] Furthermore, the affidavit is in very general terms, and does not focus on the Judge's findings we have set out above.

[26] Mr Edward accepted that counsel had told the appellant of her right to separate representation, but he submitted her naivety prevented that happening. We have not been persuaded this conflict was not explained to her.She made an informed decision to continue with the joint representation.In any event, we have not been persuaded that even if she had instructed other counsel there would have been any plausible different factual basis for sentencing her.

[27] In our view, the Judge was entitled to infer from the summary of facts that this complainant was involved in the larger operation.It is an inevitable assumption from the video that it is illustrative of a wider involvement.

[28] The inference drawn by the sentencing Judge in the passage set out at paragraph 8 is also available to this Court on the basis of Detective Hamilton's statement, which is not challenged.

[29] We do not consider there has been any incompetence by counsel in this matter.However, in situations of potential conflict it would be preferable if a signed consent is obtained from an accused.It seems to us inevitable, given the circumstances surrounding this matter, that the appellant would be sentenced on the basis she was.

[30] For these reasons the appeal is dismissed.

Solicitors

H.S. Edward for the Appellant

Crown Solicitor