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Court of Appeal of New Zealand |
Last Updated: 14 December 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
THE
QUEEN
v
JASON
ALEXANDER SCOTT
Hearing: 20 October 2005
Court: Glazebrook, Panckhurst and Wild JJ
Counsel: R J Laybourn for Appellant
D J Boldt for Crown
Judgment: 9 November 2005
REASONS
(Given by Glazebrook J)
Introduction
[1] Mr Scott was tried in the District Court at Hamilton on various cannabis charges. At the conclusion of the Crown case, he pleaded guilty to two counts of cultivating cannabis and to counts of possessing equipment capable of being used for cultivating cannabis and possessing utensils for the purposes of smoking cannabis. The jury found him guilty of a charge of possessing cannabis for the purposes of sale. He was acquitted on a charge of selling cannabis. [2] Mr Scott was sentenced on 11 May 2005 to three years imprisonment in respect of the counts of cultivating cannabis and possession of cannabis for the purposes of sale and to six months imprisonment on each of the other charges. Mr Scott now appeals against that sentence.
Facts
[3] Mr Scott had converted a bedroom and a wardrobe in his home into a sophisticated cannabis growing operation by removing the floorboards for ventilation, installing reflector shielding and lamps and using fans, timers and a paraffin lamp. When the police located the operation, they found 12 plants, 21 seedlings and two kilograms of cannabis head. Mr Scott admitted to the probation officer that he had begun cultivating cannabis in 2002. [4] At the same time, Mr Scott was also charged with assault with a weapon. The victim in this matter was the 10-year-old nephew of Mr Scott’s partner, who was living with them at the time. This matter was dealt with prior to the cannabis charges. He pleaded guilty and was sentenced on 21 January 2005 to 250 hours of community service.
Sentencing remarks
[5] Judge Green considered that it was necessary to place Mr Scott in the proper place in the continuum of sentencing for cannabis cultivation offending, as established by this Court in R v Terewi [1999] 3 NZLR 62. After discussing the three categories of offending set out in that case, the Judge went on to consider the circumstances of Mr Scott’s offending. [6] First, the Judge was satisfied that there were commercial overtones to Mr Scott’s cannabis growing operation, as he was growing far more than he could possibly consume and he possessed various items commonly used by cannabis dealers, such as postal scales and snap lock plastic bags. Further, the guilty verdict for possession of cannabis for sale has the inherent conclusion that a commercial element was intended. The Judge noted that Mr Scott declined to answer any questions regarding his current drug usage and that, apart from his current Court matters, his use of cannabis had never caused any problems. In the Judge’s view, had Mr Scott used cannabis to the extent he claimed, his capacity to work would have been seriously diminished. [7] The Judge then went on to consider the nature of Mr Scott’s cannabis growing operation. The Probation Officer described his offending as involving a small-scale commercial cultivation of cannabis plants. The Judge noted that he had been growing cannabis for some five years and that he had installed a sophisticated indoor growing system to ensure quick growth and strong healthy plants. He noted the comment in the probation report that the system Mr Scott had set up enabled him to produce a crop of cannabis every 40 to 45 days and that the cannabis had increased levels of tetrahydrocannabinol. The Judge referred to the police officer’s evidence that the estimated return per annum from the operation was some $20,000. The Judge also noted that Mr Scott had converted a bedroom and wardrobe for cannabis growing using artificial lighting, fans, vents, timing switches and reflectorised papers to line the walls. In the Judge’s view, this was obviously intended as a long-term venture. [8] Judge Green concluded that Mr Scott was involved in an operation growing a substantial amount of cannabis exceeding that required for personal use. The Judge concluded that the cannabis was intended for sale. In the Judge’s view, Mr Scott’s offending fell within category two under the Terewi guidelines, and not at the top end of category one as had been submitted by his counsel. It involved the small-scale cultivation of cannabis plants for a commercial purpose. The Judge noted that the starting point for sentencing for category two offending is generally between two and four years but that a lower starting point may be justified where sales are infrequent and very limited in extent. He was obliged to deal with Mr Scott on the basis that he had not sold in the past but will sell in the future. [9] Taking into account all the matters in regard to the cultivation, Judge Green concluded that the appropriate sentence was three years imprisonment in respect of the counts of cultivating cannabis and possessing cannabis for sale. Given that the pleas in respect of the cultivation charges were so belated, he did not give any sentencing credit. There were, in the Judge’s view, no mitigating or aggravating features and Mr Scott’s personal circumstances were virtually irrelevant. In respect of the other counts, Judge Green sentenced Mr Scott to six months imprisonment, which was concurrent with the three year sentence.
Affidavits
[10] Somewhat unusually, Mr Laybourn advanced trial counsel incompetence as a ground of appeal against Mr Scott’s sentence. Both Mr Scott and his former counsel, Mr Clews, provided this Court with affidavits regarding the communications that passed between them relating to the charges against Mr Scott. This ground was raised late and so Mr Clews’ affidavit had to be prepared in some haste. We also note that Mr Laybourn did not require Mr Clews to be available for cross-examination.
Mr Scott’s affidavit
[11] In an affidavit dated 4 October 2005, Mr Scott gave evidence regarding the advice given to him by his previous counsel, on the various charges he faced and particularly on the possibility of pleading guilty to some of those charges. [12] Mr Scott deposed that, when he first discussed the case with Mr Clews, he told him that he was guilty of the cultivation, equipment and utensil charges but that he wished to defend the charges of possession of cannabis for sale and of selling cannabis. He said that Mr Clews advised him that, if he pleaded guilty to some charges and defended the other charges, he would be immediately sent to jail and that it would be best to enter not guilty pleas to all charges in order to remain on bail. According to Mr Scott, Mr Clews repeated this advice at later meetings. [13] Mr Scott deposed that, acting on Mr Clews’ advice, he pleaded not guilty at the deposition hearing to the charges to which he had no defence to (and had in fact admitted in his police interview) because he did not want to be immediately locked up. Mr Scott said that he had never been in court before and had no experience of court procedure and that he was in employment, living in a stable relationship and occupying his own home. [14] Mr Scott said that, at trial, he entered not guilty pleas to all charges on the advice of Mr Clews who said that it was the best tactic and that he could plead guilty later in the trial. Mr Scott understood his advice to mean that, if he maintained his not guilty pleas on all charges, it would somehow help him get off the only two charges that he wanted to defend. Acting upon Mr Clews’ advice, Mr Scott said that he pleaded guilty to the cultivation, equipment and utensil charges at the end of the Crown case. [15] Mr Scott said that he has now been advised that credit would have been given to him had he pleaded guilty to the cultivation, equipment and utensil charges at an early stage but that he never received that advice from Mr Clews. He also now understands that, following such guilty pleas, a remand in custody was not inevitable and that he may have been granted bail pending trial and sentence. However, Mr Clews had advised him that guilty pleas to the uncontested charges would inevitably lead to a remand in custody. Mr Scott also said that Mr Clews did not advise him that he had the opportunity to negotiate with the police to have some charges dropped in return for guilty pleas to other charges even after depositions. Nor did Mr Clews advise him about totality and concurrent sentencing. [16] Mr Scott is in no doubt that, if he had received the proper advice from Mr Clews, he would have entered early guilty pleas to the charges that he eventually pleaded guilty to and would have sought bail on the basis that a full-time custodial sentence was not inevitable. Although he cannot say that the prosecution would have agreed to withdraw the possession for sale charge in return for guilty pleas to the other charges, he understands that this was possible.
Mr Clews’ affidavit
[17] In an affidavit dated 14 October 2005, Mr Clews set out the advice that he gave to Mr Scott on the various charges he faced. Mr Clews deposed that he and Mr Scott discussed on more than one occasion that the charges of possession of cannabis for supply and selling cannabis were to be defended. He said that Mr Scott readily accepted his advice that imprisonment would result from a plea or verdict of guilty on either or both of those charges. [18] Mr Clews said that, when Mr Scott first asked for his assistance, he had been arrested on the charge of assault with a weapon, together with the charges that arose from the discovery of his cannabis growing operation. The assault charge was laid indictably and alleged that Mr Scott had beaten the victim, who was the nephew of his partner, with a bamboo type stick, which had resulted in bruising to the victim’s lower back, upper buttocks and right thigh. After talking the case over many times, Mr Scott entered a guilty plea to that charge on Mr Clews’ advice. [19] Mr Clews explained that his view of the situation at the outset was that they should separate the assault with a weapon charge from the cannabis charges as they were different in kind and should not influence each other. He thought that there was no guarantee that Mr Scott would receive a non-custodial sentence on the assault charge, but told him that he would do his utmost to keep him out of prison. He explained that his prospects in this regard would be helped by an early guilty plea and stressed that this would be a powerful mitigating factor. He also advised Mr Scott to obtain a psychologist’s report, which he did. [20] Mr Clews deposed that he advised Mr Scott to plead guilty to the assault and to maintain his not guilty pleas to all the cannabis charges so that his assault sentence would not be influenced by the fact that he had also admitted cannabis offences. His advice was that, if Mr Scott pleaded guilty to the cultivation charges, there was every chance of going to prison. He said that Mr Scott accepted this advice. [21] On 21 January 2005 Mr Scott was sentenced to 250 hours community work on the assault charge, with the Judge noting that this sentence was less than the norm because he had accepted responsibility and had also paid $500 in reparation. Mr Clews said that, after sentencing had taken place on the assault charge, he advised Mr Scott that they should work out the best approach to the cultivation and possession charges at trial. The trial had been set down on a reserve basis for the week beginning 11 April 2005 and it was definitely proceeding in terms of the sale and possession for sale counts. Mr Clews considered that, if Mr Scott pleaded guilty to one or both of the cultivation charges, he may well have been remanded in custody for sentence. [22] Mr Clews deposed that his view was that, if Mr Scott did plead guilty, there would still be a trial and that the likely course of matters would be as follows:
(a) Pleading to some charges would not make any difference to the trial and all the evidence would still be led. Had Mr Scott pleaded guilty to the other charges, sentencing would inevitably have been adjourned until after the trial matters were resolved.
(b) If Mr Scott pleaded guilty to the cultivation charges, there was a risk of him being remanded in custody. Mr Clews could not guarantee that he would be granted bail between pleading and sentencing. There was a real risk in early pleas on the cultivation charges due to the favourable outcome of the assault charge.
[23] Mr Clews explained that, when advising clients, he always lays down the worst case scenario and works up from there. He always stresses that he cannot guarantee any particular outcome and the risk of an adverse decision is always at the forefront of all advice he gives. Mr Clews said that Mr Scott is very intelligent. Mr Clews accepts that his advice was conservative, but in each case he made sure that Mr Scott understood it. Mr Clews said that they discussed everything in detail, that he gave Mr Scott his advice and that they moved on when they had both agreed to do so. He said that Mr Scott understood that imprisonment was inevitable if he were found guilty of either of the "dealing" charges and that there was every chance of a prison sentence even if he pleaded guilty to the cultivation charges alone. However, it was their objective to get the dealing charges out of the way and then concentrate on getting the best sentence on the four charges that he would plead guilty to.
Mr Scott’s submissions
[24] Mr Laybourn, on the issue of trial counsel incompetence, submitted that Mr Scott was deprived of the benefit of credit for early guilty pleas as a result of relying on poor advice from Mr Clews, his trial counsel. Mr Scott advised his counsel that he had no defence to the cultivation, equipment and utensil charges. According to Mr Laybourn, Mr Clews advised Mr Scott that, if he pleaded guilty to these charges, he would immediately be remanded in custody. In reliance on counsel’s advice, Mr Scott remained on bail until the commencement of trial, did not challenge the cultivation, equipment and utensil charges during the Crown case and did not plead guilty until the Crown case had ended. [25] Mr Laybourn said that Mr Scott was not advised of the credit available for early guilty pleas, the possibility of advancing grounds for bail pending sentence, or the likely sentence on the uncontested charges. Had this advice been given, Mr Scott would have concluded that there was little point in taking even the genuinely contested matters to trial, as it would not affect the ultimate sentence and would deprive him of credit for early guilty pleas. In addition, Mr Clews should have advised Mr Scott that the evidence was strong on the sale and possession for supply charges and conviction thus very likely. [26] In Mr Laybourn’s submission, there was plainly no advantage to Mr Scott proceeding in the manner that he did. Mr Laybourn submitted that, had Mr Scott pleaded guilty to the uncontested charges at a very early stage, bail was likely to have been granted in light of his background, the possibility of a home detention outcome and the availability of credit for an early guilty plea. Mr Laybourn submitted also that proper legal advice would have informed Mr Scott of the totality sentencing principle and that a conviction on the possession for supply charge would probably have produced a concurrent sentence, again with credit for a guilty plea. [27] Mr Laybourn also submitted that the sentence of three years imprisonment is, in any event, manifestly excessive and/or inappropriate. Mr Laybourn did not contest the Judge’s assessment of the offending as falling within category two of Terewi, as he accepted that it was open to him to infer a commercial aspect to the offending. However, Mr Laybourn submitted that, due to the low degree of this commercial aspect, Mr Scott’s offending falls within the lower end of category two and, therefore, a starting point of between 18 months and two years would have been appropriate. [28] Mr Laybourn advanced two reasons to support his proposition that Mr Scott’s offending involved a lesser commercial element. First, in terms of scale, the quantity of 12 mature plants and 21 seedlings is not a significant category two quantity, although Mr Laybourn accepted that the productivity and efficiency of the indoor operation was an aggravating feature. Mr Laybourn took issue with the Judge’s comment that the growing cycle was 40 – 45 days. The cycle was in fact much longer. [29] Secondly, Mr Laybourn submitted that a proper inference would have been that Mr Scott’s offending had a mixed purpose, as some of the cannabis was for sale and some for personal use, with the predominant purpose being personal use. In Mr Laybourn’s submission, this is evinced both by physical evidence, such as bongs, and by Mr Scott’s admissions that he was a heavy consumer of cannabis. Similarly, the jury acquittal on the charge of selling cannabis supports a lesser degree of commercial intent and use. [30] Mr Laybourn’s next submission was that the Judge was wrong in law to conclude that Mr Scott’s personal circumstances were virtually irrelevant. He submitted that, under the Sentencing Act 2002, there is no longer any particular predominant purpose, such as deterrence, to sentencing and that the personal circumstances of an offender are clearly a relevant mitigating factor in all cases, including drug cases of a commercial nature. Mr Laybourn referred in this regard to ss 7(2), 8(i), 9(2)(g) and 9(4)(a) and (b) of the Sentencing Act. Therefore, in Mr Laybourn’s submission, Mr Scott’s good character and lack of previous offending with respect to drugs should have been taken into account as mitigating features.
Crown’s submissions
[31] In Mr Boldt’s submission, there could be no criticism of Mr Clews’ assessment that Mr Scott faced a real risk of imprisonment on the assault with a weapon charge, as the offending involved inflicting injuries on a young child. Mr Scott was a first offender when sentenced on the assault charge, a factor which would have operated far less powerfully if he had, at the same time, admitted responsibility for a two year cannabis growing operation. Mr Boldt submitted that the decision to delay the cannabis pleas until after the assault charge was dealt with was a considered one and was made for valid tactical reasons. [32] Mr Boldt submitted that the decision not to plead guilty between the assault sentencing and cannabis trial is also readily explicable. Pleas to the cultivation charges would have necessitated a further bail hearing and it was possible, though not certain, that Mr Scott would have been remanded in custody. Further, entering pleas to the cultivation charges, while defending the supply charges, would have made no difference to sentence. [33] Mr Boldt submitted that, even if early guilty pleas would not have compromised Mr Scott’s chances of a non-custodial sentence on the assault charge or risked a remand in custody, Mr Scott’s sentence would have been exactly the same unless he had also been prepared to plead guilty to the charge of possession for sale (and his instructions had always been that he was not). It was the commercial aspect of the enterprise, confirmed by his conviction on that charge, which led to the head sentence of three years imprisonment. In Mr Boldt’s submission, none of the factors that traditionally warrant credit when a guilty plea is entered, such as insight into the offending, evidence of remorse and the avoidance of the expense associated with the trial and the inconvenience to witnesses, would have applied to reduce the head sentence. [34] On the question of whether the sentence was in any event manifestly excessive, Mr Boldt submitted that there can be no complaint about the starting point chosen by the Judge. In his submission, the Judge was entitled to place the case around the middle of category two, having regard to the quantity of cannabis located at Mr Scott’s address, the sophisticated nature of the growing set-up, the clear commercial overtones, the fact that the operation had been in existence for an extended period and Mr Scott’s obvious determination to continue growing commercial quantities into the future. Mr Boldt noted that the $20,000 estimated by the police officer (and on which the Judge relied) was based on very conservative assumptions and not on a 40 – 45 day growing cycle. [35] Mr Boldt submitted that the starting point of 18 months to two years suggested by Mr Laybourn would have been appropriate only if the commercial aspect of the operation could properly be regarded as minimal. Mr Boldt submitted that, even leaving aside the various trappings of commercial production, the Judge’s conclusion that the majority of the cannabis was intended for sale was inevitable. Mr Scott had stockpiled far more cannabis than he could ever consume, and yet had two further generations of plants in production. In Mr Boldt’s submission, although the facility was small in scale by comparison with some, the fact that it was utilised at maximum capacity over a lengthy period was sufficient to justify the conclusion that the case fell squarely within category two. [36] As to Mr Scott’s personal circumstances, in Mr Boldt’s submission it was open to the Judge to conclude that the evidence as to Mr Scott’s previous character was unremarkable and did not entitle him to any credit, especially in the context of offending where a clear need for deterrence has been identified. Mr Scott had, by his own admission, been cultivating cannabis for more than two years prior to his arrest. Further, this offending came to light at the same time as an assault on a young boy in his care.
Discussion
[37] Mr Laybourn’s first submission was that Mr Clews should have advised Mr Scott to plead guilty at an early stage to all charges. The main difficulty with this submission is that there is no basis for us to infer what Mr Scott’s reaction to this advice would have been. Even now, when he has been fully appraised of all relevant matters, Mr Scott does not depose that he would have pleaded guilty to all charges, had he been advised to do so. Indeed, Mr Scott’s affidavit is predicated on the basis that his instructions to Mr Clews would not have changed and that he would have defended the possession for sale and sale charges, while pleading guilty to the others. [38] We note too that this was not an irrational decision. If Mr Scott had been acquitted on the possession for supply charge as well as the selling charge, he may have had a reasonable chance of persuading the sentencing judge that he should come within category one of Terewi. Being acquitted on the supply and sale charges may also have had a less adverse effect on later employment or travel prospects. [39] Another difficulty with Mr Laybourn’s argument is that pleading guilty at an early stage to all of the charges would have meant that the assault charge would have been dealt with at the same time as the cannabis charges. Given the serious nature of the assault, we doubt that Mr Scott would have escaped a prison sentence on the assault charge, had all the charges been dealt with together. Any prison sentence would clearly have been cumulative on the sentences for the cannabis charges. Given this, the total prison sentence imposed is likely not to have been much different, even with credit for the early guilty pleas, had Mr Scott pleaded guilty to all charges at the same time. [40] We also accept Mr Boldt’s submission that pleading guilty to the cultivation charges only would have made no difference to the overall sentence as there would still have been the trial on the supply and sale charges and the sentence on the supply charge would have not been reduced by any credit. That would then have become the lead sentence with no effect on the result. In addition, given that a custodial sentence was inevitable on the cultivation charges and home detention unlikely, there was a very real risk of bail pending trial not being granted, which had been Mr Clews’ advice. We also record that we very much doubt the Crown would have dropped the supply and sale charges in return for a plea on the cultivation charges. [41] We therefore reject Mr Scott’s ground of appeal with regard to counsel incompetence. For completeness, we note that Mr Clews was never asked to respond to the allegation that he failed to advise Mr Scott to plead guilty on all charges. We thus do not know what his response would have been on this point. [42] Turning now to the length of the sentence, we consider it to have been well within the range available to the Judge, given the sophisticated (if small-scale) nature of the operation, the Judge’s findings on its commercial nature and the potential monetary yield (as estimated conservatively by the police witness at $20,000 per annum). As to Mr Scott’s personal circumstances, we accept Mr Boldt’s submission that there were no such factors in this case that warranted any reduction in sentence.
Result
[43] For the above reasons, the appeal is dismissed.
Solicitors:
Till Henderson King, Hamilton for Appellant
Crown Law Office, Wellington
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URL: http://www.nzlii.org/nz/cases/NZCA/2005/265.html