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HEALEY Stephen Wayne v R [2004] NZCA 261 (2 November 2004)

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HEALEY Stephen Wayne v R [2004] NZCA 261 (2 November 2004)

Last Updated: 24 November 2004

IN THE COURT OF APPEAL OF NEW ZEALAND

CA270/04

THE QUEEN

v

STEPHEN WAYNE HEALEY

Hearing: 27 October 2004

Coram: O'Regan J
John Hansen J
Goddard J

Appearances: P S Coles for Appellant
M F Laracy for Crown

Judgment: 2 November 2004

JUDGMENT OF THE COURT DELIVERED BY GODDARD J

[1] The appellant was charged with cultivation of cannabis, possession of equipment for the cultivation of cannabis, and possession of cannabis for sale. Prior to depositions he pleaded guilty, pursuant to s153A of the Summary Proceedings Act 1957, to cultivating cannabis and possession of equipment for cultivating cannabis. He was tried by a jury on the charge of possession for sale and convicted.
[2] At trial the Crown had relied on the deeming provision in s6(6)(e) of the Misuse of Drugs Act 1975. The appellant had been found in possession of 196g of dried cannabis; that is, approximately seven times the amount of the presumption of 28g. The cannabis found was, however, of poor quality with an estimated value of only $50-$100. The appellant had admitted that the cannabis was from the plants he had under cultivation but denied that it was for sale and said it was for his personal use. It was on that basis that he defended the charge of possession for supply.
[3] The cultivation to which the appellant pleaded guilty involved 30 mature plants and some seedlings, found in a hidden room in his home converted into a hydroponic growing room. Lights and a heating system were installed. The cannabis plants found growing had a value of somewhere between $10,500 and $65,000.
[4] As a lead sentence, the District Court Judge imposed a sentence of two years and three months imprisonment on the charge of cultivation of cannabis, with concurrent sentences of two years imprisonment imposed on the charge of possession of cannabis for supply, and 12 months imprisonment imposed for possession of equipment. The lead sentence subsequently required adjustment as it exceeded the maximum penalty available in the District Court on a summary plea. Accordingly it was reduced to a sentence of two years imprisonment on appeal to the High Court.
[5] The short point in this appeal is whether the concurrent sentence of two years imprisonment for possession of cannabis for supply is manifestly excessive when related to the lead sentence of two years imprisonment for cultivation of cannabis, and when regard is had to sentences imposed for similar offending.
[6] Mr Coles referred to s85 of the Sentencing Act 2002 and in particular ss85(1) and 85(4)(a) and (b), which provide:

85 Court to consider totality of offending

(1) Subject to this section, if a court is considering imposing sentences of imprisonment for 2 or more offences, the individual sentences must reflect the seriousness of each offence.

...
(4) If only concurrent sentences are to be imposed,--

(a) the most serious offence must, subject to any maximum penalty provided for that offence, receive the penalty that is appropriate for the totality of the offending; and
(b) each of the lesser offences must receive the penalty appropriate to that offence.

[7] Mr Coles acknowledged, however, that, even if successful, the outcome of the appeal could have no practical effect on the appellant’s overall sentence. He accepted also that the lead sentence of two years imprisonment, reflecting the appellant’s overall criminality, was not manifestly excessive and that the original sentence of two years and three months would not have been manifestly excessive either. He submitted, however, that the concurrent sentence of two years imprisonment for possession of such low value cannabis for supply did not appropriately reflect the less serious nature of that offence and was manifestly excessive. His concern was that the sentence, if left undisturbed, would create a precedent for similar offending in the future.
[8] The appeal does not, in our view, merit a detailed traverse of the relevant jurisprudence, as we do not share Mr Coles’ view that the sentence has any precedental value of itself, imposed as it was concurrently and within the context of a lead sentence that appropriately reflected the appellant’s overall criminality. However, as the point has been raised, it is appropriate to tailor a substitute sentence to reflect the relative seriousness of the offence and in terms of s85(4)(b) of the Sentencing Act 2002.
[9] Ms Laracy referred us to the decision of this Court in R v Pearson and Mitchell CA2/03 CA3/03 24 June 2003. In that case an end sentence of nine months imprisonment was imposed on one charge of possession of cannabis for supply. The amount involved was 71.9g, although the proportion apparently intended for sale was only approximately 30.5g. The appellants were found guilty at trial but a reduction in sentence of three months was nevertheless found appropriate to take account of their personal circumstances and the fact that neither had any prior convictions.
[10] Although the amount of cannabis in the present case was considerably greater than in the case of Pearson and Mitchell, it was of considerably lower quality and value. However the appellant cannot claim any credit for personal circumstances or history, as he has previous convictions for possession of cannabis and cultivation of cannabis.
[11] We adopt a two year starting point, consistent with the guidelines in
R v Terewi [1999] 3 NZLR 62 (CA) and R v Andrews [2000] 2 NZLR 205 (CA), and halve that term to take account of the low value of the cannabis involved, to reach an end sentence of 12 months imprisonment. This is in line with the end sentence imposed in Pearson and Mitchell but without further reduction for guilty plea or personal circumstances.

Result

[12] The appeal is allowed. The sentence of two years imprisonment imposed on the charge of possession of cannabis for supply is quashed and in lieu a sentence of 12 months imprisonment imposed, to be served concurrently with the sentences of two years imprisonment for cultivation of cannabis and 12 months imprisonment for the possession of equipment for the cultivation of cannabis.

Solicitors:
Peter Coles, Palmerston North, for Appellant
Crown Law Office, Wellington

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[1]	The appellant was charged with cultivation of cannabis, possession of equipment for the cultivation of cannabis, and possession of cannabis for sale. Prior to depositions he pleaded guilty, pursuant to s153A of the Summary Proceedings Act 1957, to cultivating cannabis and possession of equipment for cultivating cannabis. He was tried by a jury on the charge of possession for sale and convicted.
[2]	At trial the Crown had relied on the deeming provision in s6(6)(e) of the Misuse of Drugs Act 1975. The appellant had been found in possession of 196g of dried cannabis; that is, approximately seven times the amount of the presumption of 28g. The cannabis found was, however, of poor quality with an estimated value of only $50-$100. The appellant had admitted that the cannabis was from the plants he had under cultivation but denied that it was for sale and said it was for his personal use. It was on that basis that he defended the charge of possession for supply.
[3]	The cultivation to which the appellant pleaded guilty involved 30 mature plants and some seedlings, found in a hidden room in his home converted into a hydroponic growing room. Lights and a heating system were installed. The cannabis plants found growing had a value of somewhere between $10,500 and $65,000.
[4]	As a lead sentence, the District Court Judge imposed a sentence of two years and three months imprisonment on the charge of cultivation of cannabis, with concurrent sentences of two years imprisonment imposed on the charge of possession of cannabis for supply, and 12 months imprisonment imposed for possession of equipment. The lead sentence subsequently required adjustment as it exceeded the maximum penalty available in the District Court on a summary plea. Accordingly it was reduced to a sentence of two years imprisonment on appeal to the High Court.
[5]	The short point in this appeal is whether the concurrent sentence of two years imprisonment for possession of cannabis for supply is manifestly excessive when related to the lead sentence of two years imprisonment for cultivation of cannabis, and when regard is had to sentences imposed for similar offending.
[6]	Mr Coles referred to s85 of the Sentencing Act 2002 and in particular ss85(1) and 85(4)(a) and (b), which provide:

[7]	Mr Coles acknowledged, however, that, even if successful, the outcome of the appeal could have no practical effect on the appellant’s overall sentence. He accepted also that the lead sentence of two years imprisonment, reflecting the appellant’s overall criminality, was not manifestly excessive and that the original sentence of two years and three months would not have been manifestly excessive either. He submitted, however, that the concurrent sentence of two years imprisonment for possession of such low value cannabis for supply did not appropriately reflect the less serious nature of that offence and was manifestly excessive. His concern was that the sentence, if left undisturbed, would create a precedent for similar offending in the future.
[8]	The appeal does not, in our view, merit a detailed traverse of the relevant jurisprudence, as we do not share Mr Coles’ view that the sentence has any precedental value of itself, imposed as it was concurrently and within the context of a lead sentence that appropriately reflected the appellant’s overall criminality. However, as the point has been raised, it is appropriate to tailor a substitute sentence to reflect the relative seriousness of the offence and in terms of s85(4)(b) of the Sentencing Act 2002.
[9]	Ms Laracy referred us to the decision of this Court in R v Pearson and Mitchell CA2/03 CA3/03 24 June 2003. In that case an end sentence of nine months imprisonment was imposed on one charge of possession of cannabis for supply. The amount involved was 71.9g, although the proportion apparently intended for sale was only approximately 30.5g. The appellants were found guilty at trial but a reduction in sentence of three months was nevertheless found appropriate to take account of their personal circumstances and the fact that neither had any prior convictions.
[10]	Although the amount of cannabis in the present case was considerably greater than in the case of Pearson and Mitchell, it was of considerably lower quality and value. However the appellant cannot claim any credit for personal circumstances or history, as he has previous convictions for possession of cannabis and cultivation of cannabis.
[11]	We adopt a two year starting point, consistent with the guidelines in R v Terewi [1999] 3 NZLR 62 (CA) and R v Andrews [2000] 2 NZLR 205 (CA), and halve that term to take account of the low value of the cannabis involved, to reach an end sentence of 12 months imprisonment. This is in line with the end sentence imposed in Pearson and Mitchell but without further reduction for guilty plea or personal circumstances.