MARK v R [2004] NZCA 108 (29 June 2004)

Court of Appeal of New Zealand

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MARK v R [2004] NZCA 108 (29 June 2004)

Last Updated: 6 July 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA470/03
CA483/03

THE QUEEN



v



COLIN BRUCE MARK
WARREN LLOYD JONES

Hearing: 23 June 2004

Coram: McGrath J
Paterson J
Doogue J

Appearances: P S Coles for Appellant Mark
F D Steedman for Appellant Jones
B J Horsley and J L Moreland for Crown

Judgment: 29 June 2004

JUDGMENT OF THE COURT DELIVERED BY PATERSON J

Introduction

[1]

Both Mr Mark and Mr Jones appeal against a sentence of four years imprisonment imposed upon them by Goddard J in the Palmerston North High Court on 2 December 2003. They both, along with a third offender Mr Smith, pleaded guilty to charges of cultivating cannabis and possessing cannabis for the purposes of supply. They received concurrent sentences of four years imprisonment on each charge.

Background

[2]	In February 2003, the police, in a surveillance flight over the Pongaroa area, identified several plots of cannabis plants. These were on an area of land owned by the co-offender Mr Smith.
[3]	Messrs Mark, Jones and Smith were subsequently observed tending the cannabis plants. A hut had recently been built on the property and there were also three caravans used for accommodation and the storage of tools. Two drying areas were located near the hut, with cannabis branches hanging from lines hung beneath some tarpaulins.
[4]	Mr Smith was seen harvesting cannabis on the property on 9 April 2003. He remained on the property for two nights. On 11 April 2003, Messrs Mark and Jones arrived at the property and went to an area where there were several cannabis plots. They harvested cannabis from these plots and were in the process of loading wool sacks full of cannabis on to a four wheel motor cycle when the police arrested them. Mr Smith was arrested in the hut where there was spread out to dry a large quantity of cannabis plant.
[5]	The police eventually removed 632 mature cannabis plants from the property and several kilograms of dried and partly dried cannabis. The cannabis had been cultivated with mulch and, in many cases, fertiliser. Several of the plants were staked and irrigation and pest control measures had been implemented. In some areas, pine trees had been cut down to allow more light into the plots.
[6]	Staff from the ESR visited the property and examined a number of the plots containing cannabis plants. They saw a total of 240 cannabis plants on nine plots. All the plants were healthy, mature female plants. 17 sample plants were sent to the ESR and these ranged in height from 92 and 180 cms. The average yield from these plants when dried was 325 grams of leaf and floral head material.
[7]	The police calculated the total value of the cannabis removed from the property at between $81,400 and $2,035,000. The estimate was based on an average yield of 292 grams per plant, and the cannabis being sold in pound weights. The wide range in the estimate reflects the differences in the value of high and low grade cannabis.
[8]	Four firearms and ammunition were found on the property. None of the offenders held a firearm licence.

The sentencing

[9]	All three offenders were sentenced together. The Judge noted that Mr Mark had 27 previous convictions, including two for possession of cannabis in 1984 and 1988, and one for cultivation of cannabis and one for aggravated robbery in 1976, for which a term of imprisonment was imposed. Mr Mark was 53 years of age.
[10]	Mr Jones, aged 40 years, had 30 previous convictions including one for possession of cannabis for supply in 1987, for which a term of non-residential periodic detention was imposed. He also had a conviction for possession of a firearm without a licence but had not been imprisoned for any of his offending. He received a final warning for assault in 1990.
[11]	The Judge considered the provisions of the Sentencing Act and noted that personal circumstances played little or no part in a sentencing of this type. She referred to R v Terewi [1999] 3 NZLR 62 and given the quantity of cannabis involved, was satisfied that the offending fell squarely within category three, which involves large scale commercial growing, usually with a considerable degree of sophistication and organisation. The Judge noted that the starting point for category three offences was four years imprisonment, or more.
[12]	The Crown had submitted that a starting point should be at least six years imprisonment, taking into account the quantity and value of the cannabis found, the fact that there were three offenders and the presence of four firearms. Goddard J noted that the alternative approach was to identify a starting point independently of the aggravating features and then make an appropriate adjustment upwards to take account of the aggravating features. An allowance would then be made for the mitigating feature which was the plea of guilty.
[13]	Her Honour fixed the starting point at four years imprisonment without taking into account the aggravating features. In doing so, she noted the absence of greater sophistication such as hydroponic cultivation, and that there was no evidence of how long the operation had been in existence.
[14]	The Judge noted three aggravating factors, first, the presence of weapons and ammunition in and around the cannabis plots, which she regarded as suggesting that the offenders were prepared to defend their enterprise with violence, if necessary; secondly the value of the cannabis; and thirdly, the degree of sophistication employed in their attempts to conceal the cannabis, namely:
•	The separation of the crop into nine plots spread across the property and the use of four wheel farm bikes to get between the plots;
•	The use of farming techniques such as weed spray, fertiliser, pruning surrounding bushes, fencing, stakes and irrigation to maximise crop yields.
[15]	18 months was added for the aggravating features and a discount of the same amount was then given for the guilty plea, reducing the sentence to four years imprisonment.

The appellant’s submissions

[16]	Mr Coles, for Mr Mark, submitted that a sentence of four years imprisonment was manifestly excessive for two reasons. The first was that the existence of firearms should not have been taken into account as an aggravating feature in Mr Mark’s sentencing. He submitted that the Judge in sentencing proceeded on an erroneous basis because the correct factual position was not put to her by counsel. This alleged error has evidently only just come to counsel’s notice because it was not referred to in the written submissions filed on 8 June last. The basis of the submission is the summary of facts which stated that a .22 calibre Browning semi-automatic pistol and a .22 calibre Norinco bolt action rifle were located in a hut where Mr Smith had been staying, and a .308 calibre Parker Hale bolt action rifle and a 12-gauge Boito double barrelled shotgun were discovered in a caravan on the property where personal property belonging to Messrs Mark and Jones was located. Mr Coles referred to deposition evidence which suggested that the latter two firearms were discovered in a caravan but that personal property belonging to Messrs Mark and Jones was not in that caravan. In these circumstances, there was nothing to connect either Mr Mark or Mr Jones to the four firearms on the property. We note that while the Judge treated the existence of the firearms as aggravating features, she did not specifically refer to them being found in a caravan in which Messrs Mark and Jones’ personal property was also located.
[17]	The second ground of appeal was that some of the aggravating factors identified by the Judge were, in part, a duplication of the factors which gave rise to the four year starting point she adopted. Apart from the existence of the weapons, the Judge took into account as aggravating factors the value of the cannabis and the degree of sophistication that was employed (see paragraph 14 above). It was submitted on behalf of Mr Mark that the farming technique used was rudimentary, that the irrigation system referred to was merely gravity feed to storage areas in respect of two plots, there was no sophistication about the farming methods, nor intensive cultivation, and that the plants would only produce their natural yield. Mr Coles accepted there were difficulties with his submission of double counting in view of this Court’s decision in R v Pure (CA359/00 of 20 February 2001).
[18]	Mr Steedman, for Mr Jones, supported Mr Mark’s submissions and noted that neither Mr Jones nor Mr Mark were seen with a firearm during the three days of police surveillance. It was also submitted that the keys to the hut and the caravans had been returned to Mr Smith by the police. Like Mr Coles, Mr Steedman sought to distinguish the Pure decision.

The Crown’s submissions

[19]

Mr Horsley, for the Crown, submitted that even if the Judge had misunderstood an aspect of the firearm situation this made no difference to the ultimate sentence. This was a case where Messrs Mark and Jones were in a joint enterprise with Mr Smith. They were seen in the hut where the loaded pistol was located. Mr Mark had personal property next to the caravan where two of the firearms were located. On the basis of R v Gemmell (CA271/01 of 23 October 2001), the Judge was entitled to treat the firearms as an aggravating factor. Counsel also noted that it was only one of the aggravating factors taken into account by the Judge.

[20]

In counsel’s submission, the Judge was entitled to start at a four year term of imprisonment and add a further 18 months for the aggravating features. The aggravating features would take the offending into the middle range of category three of R v Terewi [1999] 3 NZLR 62. The aggravating features would bring the appropriate term in this case to approximately five and a half years before a discount was given for mitigating features. In the circumstances, a term of four years imprisonment was not manifestly excessive.

Discussion

[21]	On the basis that the factual situation of the firearms was as submitted by Mr Coles, we are of the view that the Judge was entitled to take the presence of the firearms into account as an aggravating factor against both Messrs Mark and Jones. They, along with Mr Smith, were involved in a joint enterprise of cultivating cannabis on a large scale. There were four firearms on the property and one, at least, was loaded. None of the offenders had a firearm licence. There is no suggestion that Messrs Mark and Jones did not know of the existence of those firearms and the purpose for their presence. As this Court noted in Gemmell, "it is not necessary to draw any inference of intention or preparedness to use the firearms against another person to conclude that the mix of weapons and organised criminal activity in drug growing is a very dangerous mix which is potentially lethal." (paragraph 15)
[22]	The Judge noted that there were two ways to count the aggravating features (see paragraph 12 above). In Pure, there was a submission that the sentencing Judge had incorrectly fixed a starting point by reference to the categories identified in Terewi and then purported to take into account aggravating factors relating to the scale and sophistication of the operation. This Court did not accept that submission and held that the scale and sophistication of cultivation is relevant both in determining the appropriate category and the appropriate sentence within that category.
[23]	In our view, the preferable method of fixing both the category and where the starting sentence lies within that category is to consider all the elements of the offending, including what might be described as the aggravating factors relating directly to the offending. A large scale commercial growing operation is within category three, but to fix the starting point it is necessary to take into account many of the matters taken into account by the Judge in this case as aggravating features. Any external aggravating features, such as the possession of firearms in this case, are then additional aggravating features which are taken into account in considering whether there should be an increase over the starting point.
[24]	Applying this principle, we are of the view that the starting point in this case was within the range of five to six years. This was a large scale commercial growing operation. 632 mature cannabis plants were removed from the property. All the plants seen by ESR staff were female plants indicating a degree of sophistication in the cultivation of the plants. Although this was not a hydroponic operation, and the irrigation was in some respects basic, there was evidence of mulch and, in some cases, fertiliser. The scale of this offending puts the starting point between five and six years imprisonment.
[25]	When the possession of firearms is taken into account as an aggravating feature, the sentence, before consideration of mitigating features, would be at least five and a half years imprisonment. There is no challenge to the credit of 18 months given for mitigating features. In these circumstances, a sentence of four years imprisonment is clearly not manifestly excessive.

Result

[26]	Both appeals are dismissed.

Solicitors:
P S Coles, Palmerston North for Appellant Mark
F Steedman, Palmerston North for Appellant Jones
Crown Law Office, Wellington