BUTLER v R [2004] NZCA 247 (4 October 2004)

Court of Appeal of New Zealand

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BUTLER v R [2004] NZCA 247 (4 October 2004)

Last Updated: 2 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA221/04

THE QUEEN



v



EVA TERIWIA BUTLER

Hearing: 23 September 2004

Coram: McGrath J
Goddard J
Salmon J

Appearances: M J Lillico for Appellant
D J Boldt for Crown

Judgment: 4 October 2004

JUDGMENT OF THE COURT DELIVERED BY SALMON J

[1]	On 29 April 2005 the appellant pleaded guilty to and was convicted of one charge of cultivation of cannabis. She was sentenced to two years and nine months imprisonment. She appeals against that sentence.
[2]	The police executed a search warrant on the appellant’s home. A sophisticated cannabis operation was located. Two wardrobes had been set up with a heat lamp, heat shield and extractor fan. Each contained six large cannabis plants. In a shed, there was a room set up with fans, lighting equipment a hydro-zone controller, an ozone generator and other equipment. There were 24 large cannabis plants all in excellent condition in that room. In another part of the shed 76 seedlings were found. In addition the police discovered 13 cannabis "tinnies", a set of accurate scales, dry cannabis head and tinfoil cut into "tinnie" size. Around the shed there was black material which the police said was used to obscure the operation and there was a dog which the police said was there for protection. A baseball bat was found next to the door that gave access to equipment. The police submitted that the potential value of the cannabis found was around $150,000.
[3]	The Judge accepted that the estimate of value might be overstated but nevertheless considered the offending to be at the top end of the second category referred to in R v Terewi [1999] 3 NZLR 62, or perhaps the bottom end of the first category. He considered it was clear that this was a very sophisticated commercial operation. He noted that the appellant had previous convictions for possessing cannabis for supply, cultivating and selling cannabis in respect of which she received a suspended sentence of 18 months imprisonment. He noted that the appellant was a solo mother who cares for six of her seven children, one of whom has health difficulties, but he also observed that the children were being brought up in an environment in which the appellant’s actions would be seen in a positive light by them. The Judge gave credit for the guilty plea and a small credit for personal circumstances, "more for the sake of the children". The Judge took as his starting point "somewhere between 31/2 and 4 years imprisonment". After allowance for the mitigating factors he imposed a sentence of two years and nine months imprisonment.
[4]	The appeal was out of time by about six days and so an extension of time has been sought.
[5]	Mr Lillico for the appellant argued that the sentence imposed was manifestly excessive. Counsel acknowledged that his only concern was the starting point of between three and a half and four years. Counsel argued that given the heavy use of cannabis by the appellant and the true value of the crop, the offending was towards the bottom of Terewi category 2 and that therefore the relevant starting point should have been in the region of two years.
[6]	Counsel submitted that it was important to consider the use to which the cannabis crop would be put and that the Judge had overlooked the personal use aspect in his sentencing. He noted that there was no evidence of any significant profits from sale either in cash or assets.
[7]	For the Crown, Mr Boldt submitted that even allowing for a much lower valuation of the crop, it would still come towards the top end of category 2 of Terewi and that the personal use aspect would only have represented a very small part of the likely production. He referred to the professional nature of the operation and submitted that the starting point was generous to the appellant.

Discussion

[8]	We agree with the submission of the Crown and the view of the District Court Judge that this was indeed a very sophisticated operation. It was obviously set up in such a way as to ensure an ongoing supply with seedlings being cultivated at the same time as more mature plants. The carefully set up indoor operation would ensure much more favourable growing conditions than those which would exist outside. This, therefore, was significant ongoing operation by a person with previous convictions for similar offending.
[9]	As to the personal use, there was no suggestion before the Judge of a contested facts situation. We accept the submission that even allowing for personal use and difficulties of valuation, this is a case which must come at the higher end of the second classification in Terewi thus attracting a starting point for sentencing in the vicinity of four years. There was no misunderstanding by the Judge of the factual situation. The findings he made were open to him. There was no misapplication of the law. The appellant has obviously not learnt from the leniency of a suspended sentence given for her earlier offending. We have not been satisfied that the sentence imposed was manifestly excessive.
[10]	Extension of time to appeal is granted but the appeal is dismissed.

Solicitors
Sladden Cochrane, Wellington for Appellant
Crown Law Office, Wellington