	Home \| Databases \| WorldLII \| Search \| Feedback Court of Appeal of New Zealand

Home | Databases | WorldLII | Search | Feedback

Court of Appeal of New Zealand

You are here: NZLII >> Databases >> Court of Appeal of New Zealand >> 2005 >> [2005] NZCA 116

MUSGROVE v R [2005] NZCA 116 (23 May 2005)

Court of Appeal of New Zealand

[Index] [Search] [Download] [Help]

MUSGROVE v R [2005] NZCA 116 (23 May 2005)

Last Updated: 1 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA47/05

THE QUEEN

v

LAWRENCE EDWARD MUSGROVE

Hearing: 19 May 2005

Court: Hammond, Potter and Doogue JJ

Counsel: S N Hewson for Appellant
A Markham for Crown

Judgment: 23 May 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Potter J)

[1] Lawrence Edward Musgrove appeals against an effective sentence of five years imprisonment imposed for four drugs related offences, on the ground that the sentence is manifestly excessive.
[2] The appellant was found guilty following trial in the Wellington District Court of one count of cultivation of cannabis (maximum penalty seven years imprisonment) and one count of possession of cannabis for sale (maximum penalty eight years imprisonment).
[3] He subsequently pleaded guilty on arraignment to two representative counts in a separate indictment of possession of a precursor substance, and possession of materials used in production of a controlled drug (maximum penalty five years imprisonment).

Factual background

[4] On 10 June 2002 the Police executed search warrants at the appellant’s home address in Pukerua Bay and at a lock-up garage he rented in Mt Victoria. In the lock-up the Police located approximately 68 pounds (30 kgs) of dried cannabis which had been graded into categories and included 30 pounds of good quality head and 38 pounds of lower quality cabbage and stalk. The combined street value was between $82,600 and $139,000.
[5] The cannabis was stored in plastic pails and rubbish bags. A number of these were labelled with "post-it" notes indicating the quality of the cannabis and when or where it had been picked. Some of the cannabis was packed into 14 ounce deal bags. The Police also located two containers of cannabis seeds, rolls of chicken wire, nylon netting and several gin traps.
[6] The appellant arrived at the lock-up while the search was being conducted and was apprehended opening the door with his key.
[7] In the appellant’s vehicle the Police found four one-ounce "deal bags" of cannabis. At the appellant’s home address the Police located a number of unused plastic snap-lock bags and plastic capsules, a book entitled "Marijuana Botany", a further roll of nylon netting, potting mix and photographs of the appellant and an unidentified man standing in a cannabis plantation.
[8] In relation to the precursor substances/materials offending, the appellant, who is a contract painter, on four separate occasions between 10 December 2001 and 28 May 2002 ordered substantial quantities of chemicals to the value of $3,106.24 through the business account he operated with Asia Pacific Speciality Chemicals. The chemicals, hydrophosphorous acid, iodine univar and hydrochloric acid, are commonly used in the production of methamphetamine. These chemicals were purchased on behalf of an associate whom the appellant declined to name. The appellant would supply the substances to the associate. The Crown accepted that the appellant was not directly involved in the intended manufacture.

The sentence

[9] It was common ground that this offending fell within category 2 of R v Terewi [199] 3 NZLR 62.
[10] The Judge identified as aggravating features:

a) The amount of cannabis involved (68 pounds);
b) The value estimated between $82,600 and $139,000 including the head and cabbage. There was evidence that the amount of cabbage could have made about 38 ounces of oil with a potential value of $76,000.
c) The appellant was involved in cultivating and supplying over an ongoing period of time.
d) The appellant had previous convictions for cannabis related offending, one for possession of plant in 1991 and one for cultivation of cannabis in 1994.

[11] She noted by way of mitigation the early guilty pleas on the precursor substance charges, but that no credit was available in relation to the cannabis offending as those charges went to trial.
[12] The Judge determined that in terms of Terewi the appellant’s offending came at the top end of the second category, with a starting point of two to four years imprisonment.
[13] She recorded that in relation to the cannabis offending there really were no mitigating factors and imposed a term of imprisonment of four years.
[14] In respect of the precursor substance offending, which the Judge treated as separate and distinct offending, she took a starting point of 18 months imprisonment, gave credit for the guilty pleas, and imposed a sentence of one year’s imprisonment cumulative on the term of four years imposed for the cannabis offending, making a total sentence of five years imprisonment.

Submissions

[15] For the appellant it is submitted:

a) The four years starting point for the cannabis offending was too high. There was no evidence of an ongoing commercial operation with significant annual turnover. Alternatively, the starting point should have been reduced on the basis of evidence that suggested the cultivation was one-off, and any proof of distribution showing that it was infrequent, if at all.
This submission was made before the sentencing Judge, who was also the trial Judge. She made a firm finding that the appellant was involved in cultivating and supplying over an ongoing period of time, which was clearly available to her, given the quantities of cannabis found, some of it in 14 ounce deal bags, the labelling of the crop, that deal bags were found in the appellant’s vehicle and at his home, and that he himself arrived at the lock-up while the Police were there.
b) Failure to adopt a starting point in relation to the precursor charges, and failure to identify any credit for matters in mitigation resulted in a sentence which was manifestly excessive.
This ground is without merit. The Judge identified a starting point of 18 months and gave a credit of six months or one-third, for the guilty pleas.
c) The Judge failed to stand back and look at the overall sentence imposed and to appropriately apply the totality principle.
This submission also is difficult to follow as the Judge specifically referred to the need to bear in mind the totality of the offending, and the aggravating and mitigating features identified.

[16] The Crown submits that the Judge’s finding that this offending fell at the top end of category 2, was perhaps "charitable" in light of the comments in Terewi that annual revenues of more than $100,000 will place a cultivation "clearly within" category 3. The Crown noted that in Terewi the principal offender was found to be "borderline" between categories 2 and 3 in circumstances where there were 19 plants growing in a "relatively sophisticated" outdoor operation and 18.6 pounds of dried cannabis material with an estimated value of $52,000-$74,000. There was no evidence of substantial quantities of cash or illegitimate income, an aspect in this case to which counsel for the appellant drew attention.
[17] In relation to the precursor substance/materials sentence, the Crown pointed to the substantial quantity of hazardous chemicals, indicating an intended commercial-scale manufacture, and that the orders were placed on four separate occasions over a period of six months for three different types of chemicals.
[18] The Crown submits that plainly a cumulative sentence was open to the Judge as the methamphetamine offences are "different in kind" in terms of s 84 of the Sentencing Act 2002. The Crown noted that, even prior to its reclassification as a Class A drug (which occurred subsequent to this offending), methamphetamine has long been recognised as a particularly pernicious drug.
[19] It is submitted that it was open to the Judge to treat the precursor substance offending separately and cumulatively and that the sentences imposed, individually and on a totality basis, were certainly not manifestly excessive.

Decision

[20] We accept the submissions for the Crown. The cannabis offending was appropriately classified as being in category 2 of Terewi: "small scale cultivation of cannabis plants for commercial purpose". The aggravating features identified by the Judge clearly justified a sentence at the high end at the range of two to four years indicated in Terewi.
[21] Personal circumstances can rarely count in mitigation in relation to drug offending, and in relation to the cannabis offending there were no matters of mitigation of which the sentencing Judge was required to take account.
[22] The precursor substance offending was separate and distinct from the cannabis offending, the charges having been severed from the cannabis offending. A separate and cumulative sentence was therefore entirely appropriate. Given the frequency and quantity of the chemicals ordered, the starting point of 18 months was open to the Judge, and full allowance was made for the early guilty pleas.
[23] On neither an individual or cumulative basis can the sentences be regarded as manifestly excessive. There was no error of principle in the way in which the sentencing exercise was approached.
[24] The appeal is therefore dismissed.

Solicitors:
Hewson & Co, Wellington for Appellant
Crown Law Office, Wellington

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2005/116.html

[1]	Lawrence Edward Musgrove appeals against an effective sentence of five years imprisonment imposed for four drugs related offences, on the ground that the sentence is manifestly excessive.
[2]	The appellant was found guilty following trial in the Wellington District Court of one count of cultivation of cannabis (maximum penalty seven years imprisonment) and one count of possession of cannabis for sale (maximum penalty eight years imprisonment).
[3]	He subsequently pleaded guilty on arraignment to two representative counts in a separate indictment of possession of a precursor substance, and possession of materials used in production of a controlled drug (maximum penalty five years imprisonment).

[4]	On 10 June 2002 the Police executed search warrants at the appellant’s home address in Pukerua Bay and at a lock-up garage he rented in Mt Victoria. In the lock-up the Police located approximately 68 pounds (30 kgs) of dried cannabis which had been graded into categories and included 30 pounds of good quality head and 38 pounds of lower quality cabbage and stalk. The combined street value was between $82,600 and $139,000.
[5]	The cannabis was stored in plastic pails and rubbish bags. A number of these were labelled with "post-it" notes indicating the quality of the cannabis and when or where it had been picked. Some of the cannabis was packed into 14 ounce deal bags. The Police also located two containers of cannabis seeds, rolls of chicken wire, nylon netting and several gin traps.
[6]	The appellant arrived at the lock-up while the search was being conducted and was apprehended opening the door with his key.
[7]	In the appellant’s vehicle the Police found four one-ounce "deal bags" of cannabis. At the appellant’s home address the Police located a number of unused plastic snap-lock bags and plastic capsules, a book entitled "Marijuana Botany", a further roll of nylon netting, potting mix and photographs of the appellant and an unidentified man standing in a cannabis plantation.
[8]	In relation to the precursor substances/materials offending, the appellant, who is a contract painter, on four separate occasions between 10 December 2001 and 28 May 2002 ordered substantial quantities of chemicals to the value of $3,106.24 through the business account he operated with Asia Pacific Speciality Chemicals. The chemicals, hydrophosphorous acid, iodine univar and hydrochloric acid, are commonly used in the production of methamphetamine. These chemicals were purchased on behalf of an associate whom the appellant declined to name. The appellant would supply the substances to the associate. The Crown accepted that the appellant was not directly involved in the intended manufacture.

[9]	It was common ground that this offending fell within category 2 of R v Terewi [199] 3 NZLR 62.
[10]	The Judge identified as aggravating features:

[11]	She noted by way of mitigation the early guilty pleas on the precursor substance charges, but that no credit was available in relation to the cannabis offending as those charges went to trial.
[12]	The Judge determined that in terms of Terewi the appellant’s offending came at the top end of the second category, with a starting point of two to four years imprisonment.
[13]	She recorded that in relation to the cannabis offending there really were no mitigating factors and imposed a term of imprisonment of four years.
[14]	In respect of the precursor substance offending, which the Judge treated as separate and distinct offending, she took a starting point of 18 months imprisonment, gave credit for the guilty pleas, and imposed a sentence of one year’s imprisonment cumulative on the term of four years imposed for the cannabis offending, making a total sentence of five years imprisonment.

[16]	The Crown submits that the Judge’s finding that this offending fell at the top end of category 2, was perhaps "charitable" in light of the comments in Terewi that annual revenues of more than $100,000 will place a cultivation "clearly within" category 3. The Crown noted that in Terewi the principal offender was found to be "borderline" between categories 2 and 3 in circumstances where there were 19 plants growing in a "relatively sophisticated" outdoor operation and 18.6 pounds of dried cannabis material with an estimated value of $52,000-$74,000. There was no evidence of substantial quantities of cash or illegitimate income, an aspect in this case to which counsel for the appellant drew attention.
[17]	In relation to the precursor substance/materials sentence, the Crown pointed to the substantial quantity of hazardous chemicals, indicating an intended commercial-scale manufacture, and that the orders were placed on four separate occasions over a period of six months for three different types of chemicals.
[18]	The Crown submits that plainly a cumulative sentence was open to the Judge as the methamphetamine offences are "different in kind" in terms of s 84 of the Sentencing Act 2002. The Crown noted that, even prior to its reclassification as a Class A drug (which occurred subsequent to this offending), methamphetamine has long been recognised as a particularly pernicious drug.
[19]	It is submitted that it was open to the Judge to treat the precursor substance offending separately and cumulatively and that the sentences imposed, individually and on a totality basis, were certainly not manifestly excessive.

[20]	We accept the submissions for the Crown. The cannabis offending was appropriately classified as being in category 2 of Terewi: "small scale cultivation of cannabis plants for commercial purpose". The aggravating features identified by the Judge clearly justified a sentence at the high end at the range of two to four years indicated in Terewi.
[21]	Personal circumstances can rarely count in mitigation in relation to drug offending, and in relation to the cannabis offending there were no matters of mitigation of which the sentencing Judge was required to take account.
[22]	The precursor substance offending was separate and distinct from the cannabis offending, the charges having been severed from the cannabis offending. A separate and cumulative sentence was therefore entirely appropriate. Given the frequency and quantity of the chemicals ordered, the starting point of 18 months was open to the Judge, and full allowance was made for the early guilty pleas.
[23]	On neither an individual or cumulative basis can the sentences be regarded as manifestly excessive. There was no error of principle in the way in which the sentencing exercise was approached.
[24]	The appeal is therefore dismissed.