THE QUEEN v MALCOLM JOHN CORBETT [2002] NZCA 238 (7 November 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

ca210/02

THE QUEEN

V

MALCOLM JOHN CORBETT

Coram:	Keith J Blanchard J Tipping J
Counsel:	S Lance for Appellant A Markham for Crown
Judgment (on the papers):	7 November 2002

judgment of the court Delivered by blanchard J

[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 convicted on one charge of having possession of cannabis oil for supply.He was sentenced on 26 June 2002 in the District Court at Rotorua to two and a half years imprisonment.An order was also made for forfeiture of $150 cash found on the appellant during the search of his premises.

Relevant facts

[3] The Police received information that cannabis was being sold at the appellant's address.The address was searched pursuant to s18(2) of the Misuse of Drugs Act 1975 (MDA) and the Police found three film canisters containing 38 grams of cannabis oil, which had a street value of approximately $3,200.They also found a cannabis leaf, $150 cash and empty blister packs of the type used for the containment and sale of cannabis oil.

[4] The appellant was charged with two offences:

(a) Possession of a Class B controlled drug (cannabis oil) for supply; and

(b) Possession of a Class C controlled drug (cannabis leaf) for supply.

[5] In relation to the first charge, the Crown argued at trial that the appellant was unable to rebut the presumption of supply raised by s.6(6) of the MDA.The Crown argued in the alternative that the appellant was holding the cannabis oil for an acquaintance with the intention of returning it, and that returning a drug in these circumstances was technically a supply.This appears to have been put forward in response to the appellant's explanation that the cannabis oil belonged to "a mate" and that the $150 in his possession was for the rent.

[6] The jury convicted the appellant of the first charge and acquitted him of the latter.The Judge noted during sentencing that the appellant's explanation was "entirely unconvincing", and that the starting point for this offending (characterised as a small commercial operation) was between zero and five years based on R v Wallace and Christie [1999] NZCA 89; (1999) 16 CRNZ 443 (CA).The Judge was clearly influenced by the appellant's long history of criminal convictions, his unwillingness to change, and the probation officer's assessment that there was a high risk of appellant re-offending.

Grounds of appeal

[7] This is an appeal against the sentence imposed by the Judge on the ground that it was manifestly excessive.The appellant submits that he was sentenced on the basis that he was in possession of cannabis oil for commercial supply, whereas the sentence should have been based on a technical supply.This is because the most likely ground for the jury verdict was the intended "technical" supply to the "mate", evidenced by the fact the jury acquitted the appellant on the second charge (cannabis leaf).

[8] Alternatively, the appellant submits that two and a half years imprisonment is excessive in light of R v Harding & Martin (CA308/92, CA348/92, 11 December 1992) and R v Mason (CA375/95, 28 September 1995).The sentences imposed in these cases ranged from one year to eighteen months imprisonment.

Reasons

[9] A sentencing Judge is entitled to come to his or her own view of the facts, provided the findings do not conflict with the jury's verdict.The Judge is not bound to take a view of the facts most favourable to the accused.

[10] In our view the Judge was entitled to reject the appellant's explanation about the presence of the oil and the $150 cash.It was reasonably open to the Judge in light of the evidence given by the appellant to reject that explanation which was described by the Judge as "unconvincing".Neither is this inconsistent with the jury's finding that the cannabis leaf was not held for supply.It was open to the jury to conclude that the cannabis leaf was for personal use, but that the oil was not.

[11] It was also open to the Judge to impose a sentence of two and a half years imprisonment on the basis of relevant authorities.This case differs significantly from R v Harding and R v Mason. In R v Harding the two defendants had pleaded guilty and one had no previous convictions, whilst the other had only one.Similarly, the defendant had pleaded guilty in R v Mason, and although there were previous cannabis related convictions these occurred eight years prior to sentencing.

[12] In the present case, as the Judge noted, there were no mitigating factors and there was a high risk the appellant would re-offend.There are also a number of aggravating features.This was the sixth separate occasion on which the appellant has been sentenced on cannabis-related offences since May 2000, and the second time the appellant has been imprisoned for being in possession of cannabis.

Decision

[13] For these reasons the appeal is dismissed.

Solicitors:

Lance Lawson, Rotorua

Crown Law Office, Wellington