THE QUEEN v KRISTEN CLIMO [2002] NZCA 95 (9 May 2002)

IN THE court of appeal of new zealand

ca388/01

THE QUEEN

V

KRISTEN CLIMO

Coram:	Gault J Keith J Blanchard J
Counsel:	M J Levett for Appellant A Markham for Crown
Judgment (On the papers):	9 May 2002

judgment of the court delivered by gault j

[1] This appeal against conviction and 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.

Offences and sentence

[2] The appellant was found guilty by a jury in the District Court at Auckland of the following offences:

[a] Kidnapping

[b] Cultivation of cannabis

The appellant had earlier pleaded guilty to an unrelated charge of burglary, which was laid summarily.He was sentenced on 18 October 2001 to six months imprisonment on the burglary charge and nine months on each of the other two charges.Those sentences were imposed on a cumulative basis, resulting in a final sentence of two years imprisonment.

Relevant facts

[3] The burglary conviction relates to an incident on 5 November 2000, in which the appellant and an associate broke into a service station and stole cash and property valued at $351.65.Neither the cash nor the property has been recovered.

[4] The more serious charges arose in March 2001, while the appellant was on bail.He and his domestic partner had been engaged in the cultivation of cannabis.The victim, a sixteen-year-old boy who was on the appellant's property unlawfully, removed some cannabis plants from their property. Although the appellant did not personally know the victim it appears that he was quickly identified as the culprit as the result of the appellant's enquiries within the small local community.On 3 March 2001 the appellant happened upon the victim on the forecourt of the local service station where he and a friend were attempting to hitchhike.The appellant offered the victim a ride and, once he was in the back seat of the two-door vehicle, he told the friend that he could walk and proceeded to confront the victim about the cannabis in a threatening manner.Fortunately the victim's friends intervened and called the police, causing the appellant to release the victim and drive off.As a result of this incident the police executed a search warrant at the appellant's property the following day.They found 27 cannabis plants, some of which were five to six feet in height.

Conviction

[5] The appellant appeals only against his conviction for cultivation of cannabis on the basis that the Judge failed to adequately direct the jury on the law as to party liability.The appellant's partner had earlier pleaded guilty to cultivating cannabis and the appellant's defence at trial was that, although aware of the existence of the plants, he did not own the plants and was not involved in their cultivation.

[6] As there was no direct evidence that the appellant had been involved in cultivation the Crown case was that his involvement could be inferred from the circumstances in which the plants were found and his actions in relation to them.In his summing up the Judge was careful to highlight this aspect of the case.He went on to direct the jury on party liability in the following manner:

So far as the accused is concerned, the fact that [his partner] has been convicted does not mean that he was not doing it also.Indeed, if he was simply assisting her in any way to cultivate the plants, as the Crown says, he would be guilty of doing so as an accessory or as a party to her offending.

[7] We can find nothing wrong in the Judge's summing up on this aspect.If anything the direction favoured the defence in its emphasis on proof of actual cultivation, as opposed to assistance or encouragement.It is quite clear that the jury had to find more than mere knowledge on the part of the appellant in order to convict.In returning a guilty verdict it is clear that they must have done so.

Sentence

[8] While accepting that the burglary sentence was properly dealt with on a cumulative basis, the appellant submitted that the two cumulative terms of nine months imprisonment (imposed in respect of the cannabis cultivation and the kidnapping) offended against the totality principle.In his written submissions counsel for the appellant emphasised the connection between the two sets of offending.

[9] We are satisfied that cumulative sentences were appropriate in this case as the two sets of offending in question were separate transactions, each involving different types of criminality.In any event, we agree with the Crown's submission that the real issue is whether the total sentence of two years imprisonment is manifestly excessive having regard to all of the circumstances.We do not think that it is.The cannabis offending was serious, falling between the first and second categories identified in R v Terewi [1999] 3 NZLR 62.The kidnapping, while admittedly at the lower end of the scale, occurred in the context of intimidation related to drug offending.There was also the additional aggravating factor that the offending occurred while the appellant was on bail.We add that the principle of public protection may also have been applicable in light of the appellant's extensive list of previous convictions in relation to cannabis and property offences.

Decision

[10] The appeal is dismissed.

Solicitors:

Crown Law Office, Wellington