THE QUEEN v WAYNE STEVEN GREENWOOD [2002] NZCA 336 (19 December 2002)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA84/02

THE QUEEN

V

WAYNE STEVEN GREENWOOD

Coram:

McGrath J

Anderson J

Glazebrook J

Appearances:

Appellant in person

J M Jelaś for the Crown

Judgment (On the papers)

19 December 2002

JUDGMENT OF THE COURT DELIVERED BY McGRATH J

Introduction

[1]

This appeal against conviction and sentence has been heard on the papers under the Crimes Act (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.

[2]

The appellant pleaded guilty to four charges.Three, which were laid indictably, consisted of selling cannabis plant material, cultivating cannabis plant and the possession of cannabis for the purpose of supply.A further charge, brought in the summary jurisdiction, on which the appellant was sentenced at the same time, was of possession of cannabis seeds.The appellant was sentenced in the Manukau District Court on 23 November 2001.On the three charges laid indictably, the appellant was sentenced to two years imprisonment and granted leave to apply for home detention.On the summary charge, the appellant was sentenced to two months imprisonment.The Auckland District Prisons Board subsequently granted his application for home detention.

Background facts

[3]	The charges arose from a search of the appellant’s home conducted by the police at 7.50am on 12 December 2000.The police had gone to the address on an unrelated matter, to assist an immigration officer to remove a woman living at the premises.While there, the police executed a search under ss18(2) and (3) of the Misuse of Drugs Act 1975 and uncovered a number of cannabis plants being grown hydroponically.There is a dispute as to the precise number of the cannabis plants involved.The police summary of facts records that 222 cannabis plants, varying in size from 0.5 to 1.5 metres in height, and a further 157 cannabis plant seedlings, were found.The pre-sentence report records the appellant’s contention that there were only 190 cannabis plants involved (between 0.5 and 1.5 metres in height).The search also uncovered cannabis plant material drying in the master bedroom wardrobe, weighing a total of 714 grams.Cash was also found in a bag, to the value of $743.65, and in a safe, to the value of $7190.75.
[4]	The validity of the search under s21 of the New Zealand Bill of Rights Act 1990 was the subject of a s344A application heard by the District Court at Manukau.The District Court Judge held that the search by the police was both lawful and reasonable.That decision was upheld on appeal to this Court: R v Greenwood, CA163/01, 20 August 2001.
[5]	Following his plea of guilty to the indictable charges on 13 September 2001, the appellant filed an affidavit for purposes of sentencing in the District Court dated 25 October 2001.In it he acknowledged his guilt.The sentencing Judge found that the appellant’s growing of cannabis was a sophisticated commercial operation which had been proceeding, as he had acknowledged, for seven to nine months.It had potential value even at a conservative estimate, of many hundreds of thousands of dollars.The Judge acknowledged there had been guilty pleas in respect of the charges, that the probation officer had rated the risk of re-offending as low, and that references from previous employers indicated that the appellant is a man of talent and ability.She also acknowledged that the appellant’s domestic circumstances were a significant factor in determining the appropriate sentence.The appellant was newly married to a woman from Thailand, but also lived with two of his four children from a previous marriage.The second of the appellant’s sons, aged 12 at the time of sentencing, had klinefelter syndrome, manifesting itself in behaviour that was very difficult to manage.She accepted that the appellant’s current wife, former wife, and elder son were all unable to cope with the special needs of this child.The Judge also recorded that the appellant was thought motivated to change his ways, albeit he had difficulty in accepting the magnitude of his offending.
[6]	Her Honour accepted that the offending fell within Category 3 of R v Terewi [1999] 3 NZLR where the starting point for sentencing is generally at least four years.The operation involved hundreds of plants, was undertaken during a period of some duration and the estimated profit was even greater than that assessed by this Court in R v Smith CA562/99, 23 March 2000 where a sentence of four years imprisonment had been imposed and was upheld on appeal.The Judge noted the direction in Terewi that the power to suspend in cases involving a commercial element should not be used unless there are exceptional circumstances in respect of either the very small amount of drugs involved or there were unusual personal circumstances of the offender.
[7]	Having regard to the quantity of cannabis involved, the duration and potential value of the operation, and the need for deterrence in offending of this sort, the Judge took the view that the starting point for sentencing should be four years imprisonment.Giving credit to the appellant for guilty pleas following this Court’s decision on admissibility of the evidence of the search, his being a first offender, and the appellant’s unusually difficult domestic circumstances, the Judge reduced the sentence imposed to one of two years imprisonment, raising the possibility of a suspended sentence.Suspension was rare in cases of drug dealing, but the appellant’s domestic circumstances were so exceptional that the Judge decided it was appropriate for leave to be granted for the appellant to apply for home detention.On the summary matter concerning the possession of cannabis seeds, the appellant was convicted and sentenced to 2 months imprisonment.As indicated the appellant was subsequently successful in obtaining home detention.
[8]	The Judge also made an order for the forfeiture of the money in the bag, but following submission of evidence that the appellant and his wife received the money in the safe from legitimate sources, no order of forfeiture was made in respect of that money.

Grounds of appeal

[9]	The appellant appeals against his convictions in respect of the indictable charges even though they were entered following guilty pleas.He also appeals against sentence. As the appellant is not legally represented we have given consideration to whether the appeal can fairly be dealt with on the papers having regard to s392A of the Crimes Act 1961 and what the Court said in R v Hiroti CA384/01, 25 September 2002.However the basis of the appeal is clear as in our view is the manner in which it must be decided.We are satisfied the appellant would not be assisted by an oral hearing.
[10]	The appellant’s written submissions challenge his conviction on the ground that there has been a miscarriage of justice, the miscarriage being a consequence of his trial counsel acting contrary to his instructions.The appellant submits that trial counsel conceded facts relevant to the determination of the admissibility of the evidence obtained from the search of his home.The agreed statement recorded that much of the initial contact with the residents of the appellant’s home took place at the front door.The appellant says that the police had actually entered his home, unannounced and uninvited, showing no warrants or documents, and had subsequently “perjured themselves” to mask a Bill of Rights breach.The appellant attaches a photo of his front door and asserts that the police cannot have seen what they purported to see from outside the appellant’s home.
[11]	In order to substantiate his claims, to establish where the police actually were when they were first seen at his residence, and show what one can see from the front door of his house, the appellant seeks leave to call fresh evidence in support of his appeal from four witnesses – his son, a Thai friend, and two probation officers.
[12]	The appellant also submits there was a miscarriage of justice due to incompetence of his trial counsel. He points to failure to challenge the agreed statement of facts, to cross-examine police witnesses and to heed the appellant when told by him that the statement of facts was wrong.The appellant complains that his lawyer asked him who he thought would be believed, the appellant himself or the police, and that he was told to just “sit and listen”.The appellant also says, somewhat inconsistently that he “had no option but to plead guilty to get a lesser sentence”.
[13]	Crown counsel, in written submissions, argues that the evidence that the appellant seeks to adduce is not fresh evidence.The appellant was present at, and had knowledge of the matters in issue at the pre-trial hearing.In the end, following an unsuccessful appeal, he pleaded guilty.The Crown argues that it would be an abuse of court processes to allow an appeal simply because the appellant had repented earlier decisions.
[14]	The Crown also relied on an affidavit sworn by the appellant’s former counsel who had acted for him on the s344A application and previous appeal to this Court, and when he pleaded guilty and was sentenced in the District Court.His counsel said that he met with the appellant on 27 August 2001 when they discussed the factual basis on which the admissibility of evidence had been determined by this Court and the terms of its judgment of 20 August 2001.In a confirming letter sent the same day to the appellant, a copy of which was exhibited to his affidavit, his counsel said:

We therefore will have to turn our mind and will aim to prepare suitable documentation to the Court that on entering a guilty plea on the next callover on this case, you will, in the special circumstances of the care of your son, not be sentenced to imprisonment.We note and record our advice, which again you accepted, that in all the circumstances a guilty plea was the preferable course of action and was accepted by yourself.We also return to the point of the previous Court of Appeal decisions and the tariff with regard to sentences.

Decision

[15]	The appellant’s argument is in essence an attempt to relitigate the judgment of this Court upholding the District Court’s decision to allow the Crown to call the evidence obtained as a result of the search.The District Court hearing of the s344A application had proceeded on the basis of an agreed statement of facts which recorded that, when the police arrived at the property, a constable was met by one of the appellant’s sons at the front door which was open.According to the police the son was then seen to go and speak with a Thai woman inside the home, who looked towards the police officer, but did not come to the door.The officer believed, possibly mistakenly, she was running down an internal staircase of the house trying to get away.He then entered the house and located the woman.She was the subject of a removal order made under s137(1) of the Immigration Act and the constable produced it in her presence.Shortly afterwards the constable smelt cannabis on the premises and he invoked s18(2) of the Misuse of Drugs Act to conduct the search previously referred to.This Court held he had lawfully entered the premises, for the purposes of executing the removal order, and that he had properly invoked the Misuse of Drugs Act on smelling the cannabis.The Court also held the police had acted reasonably and had not been in breach of s21 of the New Zealand Bill of Rights Act in their conduct of the ensuing search.
[16]	The appellant’s complaint to us is that his counsel should not have proceeded with the s344A application on the basis of an agreed statement of facts but should have directly challenged the police version of the circumstances that caused them to enter the house.
[17]	Following delivery of this Court’s judgment in the earlier appeal the appellant pleaded guilty and, prior to sentence, filed an affidavit acknowledging his guilt of the offences charged and the reasons for his offending.It was of course on the basis of this acknowledgement, and his family’s personal circumstances, that his counsel was able to persuade the Judge to reduce the term of imprisonment to one of two years to permit the appellant to apply for home detention.
[18]	Although the appellant maintains he pleaded guilty in circumstances in which his counsel had left him no choice but to do so, we are not satisfied that this is a case of radical or indeed any error by counsel.It is clear that the appellant pleaded guilty whilst aware of, albeit concerned over, the content of the agreement statement of facts.His counsel had understandably emphasised to the appellant the risks of relying on evidence from his children and his wife (who was the woman who was the subject of the warrant) to contradict the police version of events at the doorway.In other words the appellant was clearly made aware of the implications of defending the case in terms of penalty by relitigating the lawfulness of the search on factual grounds.On his own acknowledgement he pleaded guilty in that context.These circumstances disclose no error of counsel that warrants interference with the convictions.
[19]	Furthermore, as the convictions in this case followed pleas of guilty, the prime consideration on appeal is whether there has been a miscarriage of justice.In R v Stretch [1982] 1 NZLR 225, 229 in a judgment delivered by Cooke J this Court after discussing New Zealand and English authorities said:

The result in New Zealand is that, if the conviction has followed a plea of guilty, and if it cannot be sufficiently linked with a wrong decision of the Court on a question of law (see R v Barrie 2 NZLR 78), the appellant cannot succeed unless he can show within s385(1)(c) “That on any ground there was a miscarriage of justice”.In practical effect, however, the tests “unsafe” and “miscarriage of justice” are probably much the same.

[20]	Here there is no doubt that the appellant committed the offences to which he pleaded guilty.The process questions he wishes to relitigate cannot of themselves result in a finding of a miscarriage of justice.There is no question but that the verdicts in question are safe.
[21]	On his sentence appeal the appellant expresses concern that the Crown has applied for forfeiture of his home.That is a separate matter from his present appeal.Otherwise he raises no matters going to sentence that we have not already traversed.It is more than apparent that the Judge imposed a merciful sentence in this case and that the sentence appeal lacks merit.
[22]	For these reasons this appeal against both conviction and sentence is dismissed.

Solicitors

Crown Law Office, Wellington