BROUGHTON v R [2005] NZCA 142 (9 June 2005)

Court of Appeal of New Zealand

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

---

BROUGHTON v R [2005] NZCA 142 (9 June 2005)

Last Updated: 29 June 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA18/05

THE QUEEN



v



MICHAEL ANTHONY BROUGHTON

Court: Hammond, Chambers and Robertson JJ

Counsel: J J Maddox for Appellant

A J Mills for Crown

Judgment
(on the papers): 9 June 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Hammond J)

Introduction

[1]	On the morning of his trial on 26 July 2004, in the District Court at Manukau, Mr Broughton pleaded guilty to one charge of cultivating cannabis, one charge of possession of cannabis for supply, and one charge of possession of equipment for the cultivation of cannabis.
[2]	On 8 September 2004 Mr Broughton was sentenced by Judge Tompkins to three and a half years imprisonment on the counts of cultivation of cannabis and possession of cannabis for supply; and to six months imprisonment on the count of possession of equipment. All sentences were concurrent.
[3]	Mr Broughton now appeals against his sentence on the ground that it is manifestly excessive.
[4]	The appeal against sentence is being heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001, the relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, having being considered by the members of the Court who have conferred and agreed upon this judgment.

Background

[5]	In late October 2003, on unrelated matters, the police visited rental premises occupied by Mr Broughton and his wife. The police obtained a search warrant after they noticed a strong smell of cannabis. The search warrant was executed later that morning.
[6]	This property was an 11-acre block in semi-rural Papakura. On it were a house, a number of detached sheds, and two glasshouses.
[7]	Within a building on the property the police found a concealed room, set up for the cultivation of cannabis. This contained some 50 mature cannabis plants, under adjustable growing lights. This room was equipped with fans and lighting.
[8]	These cannabis plants were between three-quarters to a metre in height. An additional 24 cannabis seedlings were found, as well as just under 250 grams of dried cannabis plant material.
[9]	The cannabis seized was estimated by the police to have a street value of approximately $130,000. Mr Broughton accepted that figure.
[10]	There was a closed-circuit television security system in place on the property. Two air rifles were also found, a loaded one being under the appellant’s bed.
[11]	When first spoken to, Mr Broughton said that the cannabis was his, and that he was growing it, "to pay my employees for their wages".

The District Court sentencing

[12]	The Crown submitted that this offending fell within the higher end of category 2 of this Court’s categorisation in R v Terewi [1999] 3 NZLR 62. The Crown submitted there should be a reduced credit for the late guilty plea and that a starting point of four years imprisonment was appropriate with an effective sentence (after allowing for mitigating features) of between three to three and a half years.
[13]	In the District Court, Mr Maddox accepted that a term of imprisonment was appropriate. He was recorded by the Judge as having accepted that the case falls into the higher end of category 2 in Terewi.
[14]	Mr Maddox submitted that this was not a sophisticated operation with no evidence of selling or supplying and no commercial purpose.
[15]	It was suggested that the main growing room was already in place when Mr Broughton and his partner moved into the premises. It was submitted that a "friend" had prevailed upon him to make it available to store and cultivate cannabis plants, and this friend had set up the facility in return for a "free supply" to Mr Broughton. Mr Broughton has not advised the police who this "friend" might be.
[16]	Judge Tompkins rejected a submission that this offending was at a lower level of culpability. He took a starting point of four years imprisonment and deducted six months for the late guilty plea, to arrive at an effective term of imprisonment of three and a half years.

The appellant’s submissions in this Court

[17]	Mr Maddox submitted that:
•	no or insufficient attention was paid to the Department of Corrections sentencing report and other indications of good character;
•	the District Court Judge was in error in taking as an aggravating feature that there was a closed-circuit television security system installed at the property;
•	that no or no sufficient weight was given to the third party involvement.
[18]	We record that Mr Maddox also filed an affidavit by Mrs Broughton. He should not have done so without applying for leave. At the time the affidavit was filed, leave was required under para 7 of the Practice Note – Criminal Appeals [1997] 3 NZLR 513. (Since that time, this requirement has been codified by an amendment to the Court of Appeal (Criminal) Rules 2001: see now r 12B.) Although leave was not sought, we have nonetheless considered Mrs Broughton’s affidavit. It is quite clear that, had leave been sought, leave would not have been granted. The evidence is not fresh. What Mrs Broughton says was available to the defence at sentencing, had Mr Maddox then sought to use it.
[19]	In any event, Mr Maddox relies on the affidavit for only two propositions. The first – as to the state of the growing room when the Broughtons first leased the property – is irrelevant. The second - as to the fact that Mrs Broughton had been surprised when police discovered cannabis growing in the shed - is also irrelevant. The fact that Mrs Broughton did not know about her husband’s cultivation practice (even if true) does not impact upon his culpability and the sentence he should receive for his admitted crimes.

Discussion

[20]	As to the first ground of appeal, the relevant report indicates that Mr Broughton is not a stranger to cannabis related offences. However the report indicated that he was strongly motivated to change, and that the whole present experience has been a salutary one for him. Nevertheless, the report recommended imprisonment.
[21]	Although the Judge referred only briefly to matters discussed in the sentencing report, he was clearly aware of it and took account of it. His sentencing notes specifically refer to the deduction of six months "for the late guilty plea and other mitigating factors referred to in the pre-sentence report".
[22]	As to the security cameras, that was seen by the Judge, in terms, as being a "largely neutral matter" ([13]).
[23]	The real point of the appeal was the third point. Mr Broughton has maintained - at least since his sentencing - that he was just a "minder" of this cannabis operation, in return for free supply to himself. The Judge disposed of that point, in our view rightly, by saying, "Mr Broughton cannot have it both ways". That is, he could not expect a lighter sentence by claiming that he was not the primary offender - if indeed such was the case - unless he was prepared to provide particulars of the third party to the police. In the absence of any such particulars, the sentencing Judge was perfectly entitled to treat Mr Broughton as being the principal offender.
[24]	But in any event, even if it is assumed that there was a shadowy "principal offender", Mr Broughton’s distinct involvement in an enterprise of this size and commerciality would still have attracted a high degree of culpability.
[25]	It was open to the Judge to find that this offending came within category 2 of Terewi - indeed this was never disputed - and it was equally open to the Judge to find that the offending was at the upper end of category 2. A sterner sentence could not have been criticised: this Court in Terewi indicated that revenues of more than $100,000 would clearly take a cultivation operation into category 3.
[26]	This sentence was quite unremarkable. It is very much in line with other similar cases which have been considered by this Court: see, for instance, R v Springer CA239/01 25 December 2001 where there were similar charges and a total value of cannabis of $64,500.

Disposition

[27]	The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington