THE QUEEN v ANGELA MARY MONKMAN [2003] NZCA 36 (3 March 2003)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA445/02

THE QUEEN

V

ANGELA MARY MONKMAN

Hearing:

20 February 2003

Coram:

Glazebrook J

Hammond J

Gendall J

Appearances:

K M Daniels for Appellant

B J Horsley for Respondent

Judgment:

3 March 2003

JUDGMENT OF THE COURT DELIVERED BY GENDALL J

[1]	The appellant was sentenced in the District Court at Wellington on 26 November 2002 to a term of 2 years 9 months’ imprisonment on a charge of cultivating cannabis, and 18 months’ imprisonment on a charge of knowingly permitting premises to be used for the purpose of cultivation of cannabis.The terms of imprisonment were concurrent and imposed upon guilty pleas being entered.She appeals against the effective sentence of 2 years 9 months’ imprisonment.
[2]	The essential facts are that in July 2001 the appellant entered into a tenancy agreement to rent a dwelling at Lower Hutt at a weekly rental of $260.It appears that her income at that time was the domestic purpose benefit of $170 per week.She then took possession, but did not move in.The premises were converted internally into growing rooms with sophisticated equipment and hydroponic systems for the purpose of growing cannabis.Acting upon advice, the police entered the premises five months later in December 2001 to find the large scale and sophisticated cannabis cultivating operation.The equipment was valued at an estimate of $25,000 and the plants, according to police assessment, were capable of generating between $14,000 to $28,000 worth of marketable cannabis every 6 to 8 weeks.
[3]	The appellant and an alleged co-offender were charged with cultivation of cannabis and she, having entered into the tenancy agreement in a false name to acquire the property for that purpose, was also charged with permitting premises to be used for the purposes of a cannabis offence.The co-offender was discharged after a preliminary hearing.The appellant eventually entered a guilty plea in November 2002, 11 months after her arrest.In the meantime she had become pregnant in about May 2002.
[4]	Ms Monkman’s personal circumstances are that she was aged 30, living estranged from her family and with no children.She was unemployed and had a number of previous convictions (generally for offences of dishonesty and minor matters of assault, trespass and wilful damage) but had no previous convictions involving drugs.
[5]	In sentencing the appellant the District Court Judge, after outlining the acts, described the cultivation exercise as being a commercial operation which she put as between categories two and three as described in R v Terewi [1999] 3 NZLR 62, 4, (CA).The Judge accepted the Crown’s submission that the appellant played a significant and necessary role in the cultivation of cannabis as, without her participation, the cultivation could not have occurred in that house in the same way.She referred to principles applicable being denunciation, deterrence and the necessity that offenders take responsibility and be accountable to the community.The Judge referred to the probation report in which the appellant denied responsibility and showed no remorse, and the Judge noted that the only mitigating factors were the late guilty plea and the absence of previous drug offending.The Judge took as a starting point a term of 4 to 5 years’ imprisonment and, applying the mitigating factors identified as the guilty plea and absence of previous drug offending stated that for a principal offender a sentence of 3 ½ years’ imprisonment was warranted.The Judge, however, went on to say that since the appellant was “the lesser party” the sentence of 2 years 9 months’ imprisonment was imposed for the cultivation charge.
[6]	Whether a sentence can be said to be manifestly excessive turns on the maximum sentence prescribed by law for the offence; the level of sentencing customarily observed with respect to that offence; the place which the conduct in question assumes on the scale of seriousness of offences of that type; and the personal circumstances of the offender (to the extent that they are relevant with respect to the particular kind of offending).A “meaningful” discount must be given for the guilty plea.
[7]	On appeal Mr Daniels submitted that the appellant played no actual part in the cultivation of cannabis and her part was simply to enter into the fraudulent tenancy agreement. There is no evidence one way or the other as to the degree of involvement of the appellant outside her admission but the Judge does appear to have accepted that her role was limited to the renting of the house.The fact remains, however, that she pleaded guilty to the charge of cultivation and quite clearly the operation could not have taken place without her active assistance.Given her involvement in the renting of the house, it must also have been clear to her that the operation would be of some size.Mr Daniels submitted that the appellant ought not to have received a sentence which prevented the granting to her of leave to apply for home detention.Mr Daniels argued that the appellant was a party to the offending, only in the sense that she knowingly permitted premises to be used for the purposes of committing the crime, and to that extent, he said, the charges were duplicated.He emphasised the appellant’s absence of previous drug convictions and her present personal predicament of imminent confinement to give birth to her child.
[8]	Mr Horsley for the Crown emphasised the sophisticated nature of what was undoubtedly a commercial operation, and that the appellant must have been aware of that fact.Obviously the operation was commercial but given the appellant’s limited role (as accepted by the Judge) it is questionable whether she was necessarily aware of the full scope of the enterprise.
[9]	In terms of R v Terewi (supra) there can be no doubt that the offending could not fall in the broad category one as being cultivation on a non-commercial basis.This was clearly at least small scale cultivation for commercial purposes, that is, to derive profit and appropriately came within category two.It is to be remembered that the Terewi “categories” are only broad guides.Whether the appellant fell “between categories two and three” may be open for debate and it may be that the Judge took a somewhat high assessment of a starting point of 4 to 5 years.But certainly a starting point of anything between 2 and 4 years was necessary.Whilst an exact starting point may never be precisely fixed, what is crucial is the “end point” reached in the sentencing exercise.That is, the overall sentence must be appropriate but an offender and any reviewing court is assisted in knowing the process by which a sentencing Judge reached that end point.
[10]	We think that a starting point of no more than 3-4 years’ imprisonment was warranted in this case. The appellant’s guilty plea came late and was not matched by any expressions of remorse, regret or assistance given to the police.Nevertheless it deserved some credit which we would have thought in these circumstances was 6-9 months.We do not accept the Crown’s submission that conviction on both counts would have been the inevitable outcome had the matter gone to trial.An adjustment would also clearly need to be made for her lesser role.A combination of her lesser role and actions in simply renting the premises for others, the absence of previous drug convictions, suggest to us that a sentence of 2 years’ imprisonment should have been the appropriate end point.
[11]	Viewed in that light a sentence of 2 years 9 months’ imprisonment was manifestly excessive.Accordingly the appeal is allowed and a sentence of 2 years’ imprisonment substituted on the charge of cultivation of cannabis.The concurrent sentence of 18 months’ imprisonment on the charge of permitting premises to be used for commission of a cannabis offence remains.
[12]	Given the appellant’s pregnancy and imminent confinement, this is a proper case for leave to be granted for the appellant to apply for home detention and such leave is granted.Whilst Mr Daniels (somewhat optimistically) urged that the Court postpone the commencement of any sentence of imprisonment we do not have no power to do so, it already having been commenced.In any event, we would not have regarded this as a case coming within the strict requirements of s100 of the Sentencing Act 2002.

Solicitors:

Crown Law Office, Wellington