THE QUEEN v DENNIS JOPHUS MAKALIO [2002] NZCA 104 (20 May 2002)

IN THE court of appeal of new zealand

ca10/02

THE QUEEN

V

DENNIS JOPHUS MAKALIO

Coram:	Blanchard J McGrath J Anderson J
Counsel:	M C Smith for Appellant
	A Markham for Crown
Judgment (on the papers):	20 May 2002

judgment of the court

[1] This appeal against sentence has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence and sentence

[2] The appellant was sentenced in the District Court at Wellington on a charge of possession, jointly with another man, of the Class C controlled drug cannabis plant for the purpose of sale (s6(1) of the Misuse of Drugs Act 1975). The appellant had pleaded guilty to that charge.The other man, Mr Orosz, has yet to stand trial.The appellant received a sentence of 18 months imprisonment but was given leave to apply for home detention.

Relevant facts

[3] On 27 April 2001 the appellant and Mr Orosz were driving along Fenton Street, Rotorua.When their vehicle was subjected to a routine check under the Land Transport Act 1998 police officers noted a strong smell of cannabis.A search was conducted under s18 of the Misuse of Drugs Act.Four bags of cannabis were found in the boot containing a total of approximately 2½ kilograms of cannabis leaf of low quality - a type often used to make cannabis oil.The quantity of cannabis was well above the presumption for supply (28 grams).The appellant has a previous conviction for possession cannabis plant for supply in 1991.However the Judge did not consider that this should be taken to be an aggravating factor.She took a starting point of two years noting that both counsel accepted that the case fell within category 2 of R v Terewi [1999] 3 NZLR 62 and were also agreed that the appropriate sentence would be two years or less, with counsel for the appellant, Mr Smith, seeking suspension of the sentence.The Judge took into account a plea of guilty to arrive at the sentence of 18 months imprisonment which she refused to suspend saying that personal circumstances could not be given very great weight because of the importance of deterrence.She did, however, as noted grant leave to apply for home detention.

Grounds of appeal

[4] Counsel for the appellant submitted that the starting point was too high and that a greater deduction should have been given.Reference was made in the written submissions to the circumstances in which the appellant came to plead guilty but we do not regard that as relevant to a sentence appeal.It has been submitted that the police estimate of value of the cannabis of $3,600 has been exaggerated.The appellant's estimate was in the region of $300 to $400.The Judge had accepted that the appellant ought to be sentenced on the basis that he had possession of half the quantity of cannabis.The weight was said to be the wet weight, not the weight when dried.

Reasons

[5] Although the cannabis plant was low grade "cabbage", the weight of material, even if allowance had to be made for wetness, was substantially more than the statutory presumption and the summary of facts, on the basis of which the plea was entered, records that it is of a type generally used in the making of cannabis oil.Although it has not been established that this was its intended purpose in this case, a sentencing Judge was entitled to approach the question of value on that basis.We are satisfied from the Crown's submission that even allowing for some leeway because of moisture content, the value must have considerably exceeded the figure now put forward for the appellant.The Judge was generous to the appellant in attributing only half of the cannabis plant to the appellant.On the basis of Terewi it cannot be said that the Judge's starting point was inappropriate.She gave a sufficient reduction for the guilty plea and was entitled to take the view that a suspension of sentence case of this type of offending was not justified.The appellant has a lengthy criminal record.His personal circumstances, to the extent that they were relevant, did not require any further credit.We have not been persuaded that the sentence was manifestly excessive.

Decision

[6] The appeal is dismissed.

Solicitors:

M C Smith, Porirua

Crown Law Office, Wellington