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Whiunui v R [2005] NZCA 266 (9 November 2005)

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Whiunui v R [2005] NZCA 266 (9 November 2005)

Last Updated: 14 December 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA212/05

THE QUEEN

V

PIKI MAUNGA WHIUNUI

Court: William Young, Chambers and Robertson JJ

Counsel: Appellant in Person
M J Inwood for Crown

Judgment (on the papers): 9 November 2005

JUDGMENT OF THE COURT

The appeal is dismissed.

REASONS

(Given by Chambers J)

Cultivating cannabis

[1] On 24 May this year Judge J E Macdonald sentenced Piki Whiunui to 14 months’ imprisonment on a charge of cultivating cannabis. At the time of that sentence, Mr Whiunui was already a prison inmate, having in late 2004 been sentenced to 16 months’ imprisonment on an earlier charge of cultivating cannabis. Judge Macdonald ordered that the new sentence was to be cumulative.
[2] Mr Whiunui has appealed against Judge Macdonald’s sentence on the grounds that it was manifestly excessive. This appeal has been heard on the papers under s 392B of the Crimes Act 1961. The relevant materials, including written submissions which have been received in accordance with r 29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the court who have conferred and agreed upon this judgment.

Issues on the appeal

[3] Mr Whiunui has two complaints. The first is a challenge to the factual basis upon which the sentencing proceeded.
[4] The second complaint is that the sentence is high, given that this was, in Mr Whiunui’s words, "a victimless crime". Mr Whiunui supplied a newspaper report describing a sentence imposed on another offender. He feels that his sentence is too high compared with that.
[5] We shall deal with the issues in turn.

The factual basis on which the sentencing proceeded

[6] Mr Whiunui, who was represented by counsel in the District Court, pleaded guilty to the charge of cultivating cannabis.
[7] In accordance with normal practice, the police prepared a summary of facts on which it was proposed the sentencing would proceed. That summary stated that Mr Whiunui had cultivated 51 female cannabis plants. The statement then proceeded to calculate the potential yield of those plants. That assessment was required in light of this court’s request to prosecutors in R v Terewi [1999] 3 NZLR 62 at [6]. The police assessed the potential yield at 2 ounces per plant once the plant has reached maturity and assumed a value of $350 an ounce. The equation therefore was:

51 plants = 102 ounces at $350 = $35,700.

[8] Mr Whiunui did not accept the summary of facts. Initially, he disputed:

(a) The number of plants he was said to have cultivated;

(b) The assertion that all the plants were female.

[9] The sentencing was originally due to take place on 6 May this year. It was adjourned, however, because of that factual dispute. By the time the adjourned hearing date arrived, the Crown and Mr Whiunui had settled the disputed facts. Mr Whiunui made a concession: he accepted that he did own and had cultivated the 51 plants. But the Crown too made a concession. The police had had a sample of the plants examined by an expert, who determined that approximately 25% of the plants were male. Because male plants have no value, the yield calculation was discounted by 25%. That is to say, the sentencing proceeded on that agreed basis, namely that the plants had a potential yield worth approximately $26,000.
[10] Judge Macdonald expressly recorded in his sentencing notes the two concessions and the basis upon which the sentencing proceeded.
[11] Mr Whiunui now wishes to renege on what was agreed. He is once again insisting that he did not know about 19 of the 51 plants. He also disputes the police’s testing procedures and the 25% male figure. He does not say what he considers the male figure to be, but he did make the following comment: "I know that if the plants were lying around for that long and at the age they were, they would have dried up and they would have all turned male, so how did they test the plants properly." We do not know whether that assertion is scientifically accurate, but even if it were, that would suggest that, if anything, the percentage of male plants has been overstated and the percentage of female plants understated. If that did occur, it would mean that the yield figure has been understated. That would not help Mr Whiunui’s case; rather, it would make it worse.
[12] But in any event Mr Whiunui is stuck with the agreement reached with the Crown as to number of plants and potential yield. Mr Whiunui was represented by counsel at the time the facts were agreed. It is too late now to have second thoughts about that and to try to renegotiate the facts.
[13] We would also observe that, even if the yield figure is slightly wrong, it would have had no impact on sentencing. We also find it very hard to believe that Mr Whiunui did not know about the 19 plants which were in a plot only 10 metres to the right of his house.
[14] There is accordingly nothing in this first point. This appeal, like the sentencing itself, must be considered on the basis of the facts as agreed by the Crown and Mr Whiunui.

Level of sentence compared with other like cases

[15] Mr Whiunui’s second point is that the sentence was too high. He supplied us with a newspaper report relating to a 48 year old Roxborough man, who cultivated 39 plants and who was sentenced in the District Court to 15 months’ jail. Our first comment would be that this present sentence does not appear to be out of line with that one. But, in any event, as any lawyer would know, although Mr Whiunui could not be expected to know, sentence appeals are conducted not on the basis of a comparison with another isolated District Court case but rather in light of appellate authorities, particularly decisions of this court. There is a guideline judgment in this area: Terewi. This sentencing was conducted in accordance with that decision. Both Crown counsel and Mr Whiunui’s counsel at sentencing agreed that this was a category 2 case in terms of Terewi. Crown counsel submitted that the sentence should have been something less than two years’ imprisonment. Mr Whiunui’s counsel submitted that a sentence of 12 months’ imprisonment was appropriate. The judge adopted a figure very close to Mr Henderson’s suggestion, namely 14 months.
[16] Those sentence suggestions and the sentence actually imposed will at first blush seem low to those familiar with sentencing levels in this area. But the explanation is that, as we have already said, Mr Whiunui was already in prison on an earlier cannabis cultivation charge. Counsel and the judge proceeded on an assumption that the sentence would have to be added onto the earlier one. That assumption was entirely justified given ss 84 and 85 of the Sentencing Act 2002. Mr Whiunui in his submissions suggests that the sentence should have been concurrent. But, even if Judge Macdonald had imposed a concurrent sentence, he would have had to impose a sentence "appropriate for the totality of the offending": s 85(4)(a). Had a concurrent sentence been imposed, it would have had to be the two and a half years’ imprisonment, which Judge Macdonald, in his sentencing notes, considered would have been the overall penalty had both charges of cultivation been dealt with together. The end result is identical, regardless of whether the judge followed the "cumulative" path or the "concurrent" path.
[17] It was certainly appropriate here for the judge to opt for a cumulative sentence. The judge’s adoption of two and a half years’ imprisonment for the overall offending was open to him. It must not be forgotten that the second offence was committed while Mr Whiunui was on bail for the first offence. Section 9(1)(c) of the Sentencing Act requires the court to take into account as an aggravating factor the fact that "the offence was committed while the offender was on bail". Someone who continues to offend in the same way while on bail demonstrates that the fact of arrest and pending punishment have not deterred him from continuing to offend; in those circumstances, a sentencing judge is fully entitled to increase the sentence with respect to the second offence so as to ensure that the offender is deterred from continuing to offend in the same way. That is one of the fundamental purposes of sentencing: s 7(1)(f).
[18] The first sentence had been 16 months’ imprisonment. To add a further 14 months (making two and a half years’ imprisonment overall) was not manifestly excessive. Indeed, Judge Macdonald’s sentence was low for a category 2 offence. That was because His Honour reduced the sentence in light of the totality principle.

Result

[19] We dismiss the appeal.

Solicitors:
Crown Law Office, Wellington

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[3]	Mr Whiunui has two complaints. The first is a challenge to the factual basis upon which the sentencing proceeded.
[4]	The second complaint is that the sentence is high, given that this was, in Mr Whiunui’s words, "a victimless crime". Mr Whiunui supplied a newspaper report describing a sentence imposed on another offender. He feels that his sentence is too high compared with that.
[5]	We shall deal with the issues in turn.

[9]	The sentencing was originally due to take place on 6 May this year. It was adjourned, however, because of that factual dispute. By the time the adjourned hearing date arrived, the Crown and Mr Whiunui had settled the disputed facts. Mr Whiunui made a concession: he accepted that he did own and had cultivated the 51 plants. But the Crown too made a concession. The police had had a sample of the plants examined by an expert, who determined that approximately 25% of the plants were male. Because male plants have no value, the yield calculation was discounted by 25%. That is to say, the sentencing proceeded on that agreed basis, namely that the plants had a potential yield worth approximately $26,000.
[10]	Judge Macdonald expressly recorded in his sentencing notes the two concessions and the basis upon which the sentencing proceeded.
[11]	Mr Whiunui now wishes to renege on what was agreed. He is once again insisting that he did not know about 19 of the 51 plants. He also disputes the police’s testing procedures and the 25% male figure. He does not say what he considers the male figure to be, but he did make the following comment: "I know that if the plants were lying around for that long and at the age they were, they would have dried up and they would have all turned male, so how did they test the plants properly." We do not know whether that assertion is scientifically accurate, but even if it were, that would suggest that, if anything, the percentage of male plants has been overstated and the percentage of female plants understated. If that did occur, it would mean that the yield figure has been understated. That would not help Mr Whiunui’s case; rather, it would make it worse.
[12]	But in any event Mr Whiunui is stuck with the agreement reached with the Crown as to number of plants and potential yield. Mr Whiunui was represented by counsel at the time the facts were agreed. It is too late now to have second thoughts about that and to try to renegotiate the facts.
[13]	We would also observe that, even if the yield figure is slightly wrong, it would have had no impact on sentencing. We also find it very hard to believe that Mr Whiunui did not know about the 19 plants which were in a plot only 10 metres to the right of his house.
[14]	There is accordingly nothing in this first point. This appeal, like the sentencing itself, must be considered on the basis of the facts as agreed by the Crown and Mr Whiunui.

[15]	Mr Whiunui’s second point is that the sentence was too high. He supplied us with a newspaper report relating to a 48 year old Roxborough man, who cultivated 39 plants and who was sentenced in the District Court to 15 months’ jail. Our first comment would be that this present sentence does not appear to be out of line with that one. But, in any event, as any lawyer would know, although Mr Whiunui could not be expected to know, sentence appeals are conducted not on the basis of a comparison with another isolated District Court case but rather in light of appellate authorities, particularly decisions of this court. There is a guideline judgment in this area: Terewi. This sentencing was conducted in accordance with that decision. Both Crown counsel and Mr Whiunui’s counsel at sentencing agreed that this was a category 2 case in terms of Terewi. Crown counsel submitted that the sentence should have been something less than two years’ imprisonment. Mr Whiunui’s counsel submitted that a sentence of 12 months’ imprisonment was appropriate. The judge adopted a figure very close to Mr Henderson’s suggestion, namely 14 months.
[16]	Those sentence suggestions and the sentence actually imposed will at first blush seem low to those familiar with sentencing levels in this area. But the explanation is that, as we have already said, Mr Whiunui was already in prison on an earlier cannabis cultivation charge. Counsel and the judge proceeded on an assumption that the sentence would have to be added onto the earlier one. That assumption was entirely justified given ss 84 and 85 of the Sentencing Act 2002. Mr Whiunui in his submissions suggests that the sentence should have been concurrent. But, even if Judge Macdonald had imposed a concurrent sentence, he would have had to impose a sentence "appropriate for the totality of the offending": s 85(4)(a). Had a concurrent sentence been imposed, it would have had to be the two and a half years’ imprisonment, which Judge Macdonald, in his sentencing notes, considered would have been the overall penalty had both charges of cultivation been dealt with together. The end result is identical, regardless of whether the judge followed the "cumulative" path or the "concurrent" path.
[17]	It was certainly appropriate here for the judge to opt for a cumulative sentence. The judge’s adoption of two and a half years’ imprisonment for the overall offending was open to him. It must not be forgotten that the second offence was committed while Mr Whiunui was on bail for the first offence. Section 9(1)(c) of the Sentencing Act requires the court to take into account as an aggravating factor the fact that "the offence was committed while the offender was on bail". Someone who continues to offend in the same way while on bail demonstrates that the fact of arrest and pending punishment have not deterred him from continuing to offend; in those circumstances, a sentencing judge is fully entitled to increase the sentence with respect to the second offence so as to ensure that the offender is deterred from continuing to offend in the same way. That is one of the fundamental purposes of sentencing: s 7(1)(f).
[18]	The first sentence had been 16 months’ imprisonment. To add a further 14 months (making two and a half years’ imprisonment overall) was not manifestly excessive. Indeed, Judge Macdonald’s sentence was low for a category 2 offence. That was because His Honour reduced the sentence in light of the totality principle.