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GATENBY v R [2005] NZCA 77 (28 April 2005)

Last Updated: 9 May 2005

IN THE COURT OF APPEAL OF NEW ZEALAND

CA511/04

THE QUEEN

v

MERVYN RAY GATENBY

Hearing: 14 April 2005

Court: McGrath, Williams and Panckhurst JJ

Counsel: M J Hine for Appellant
H D M Lawry for Crown

Judgment: 28 April 2005

JUDGMENT OF THE COURT

A The sentence of two years three months imprisonment is quashed.

B A sentence of one year three months imprisonment is substituted.

C Leave to apply for home detention is declined and standard conditions of release shall apply.

REASONS

(Given by Panckhurst J)

Introduction

[1] The appellant was sentenced to two years three months imprisonment in the District Court upon a charge of cultivating cannabis. He appeals against that sentence essentially on the basis that the Judge erred by characterising the offending as for a commercial purpose, rather than cultivation of plants for personal use.
[2] The case illustrates the difficulties which can occur when the requirements of s24 of the Sentencing Act are not met. That is where the significance of a disputed fact to the likely sentence is not articulated and, if sought, evidence called to facilitate a finding upon the disputed aspect by the sentencer.

The facts of the case

[3] On 29 October 2003 police officers executed a search warrant at a rural Northland address. Within the house they located 24 cannabis cuttings, which were under cultivation using an horticultural heating pad and a growing medium. Associated with the cuttings was a bucket containing a quantity of freshly cut cannabis leaf.
[4] A short distance from the house the police located a shed which was camouflaged by foliage and the colour it was painted. The shed contained 40 cannabis plants. There were two mature mother plants and 38 seedlings which ranged from 20 to 45 centimetres in height. The shed was fitted with artificial lighting, a reflective lining and electricity and water supply. The growing operation was soil-based.
[5] The appellant, who returned to the house during the course of the police search, accepted responsibility for the plants, said that he had constructed the shed about 18 months previously and asserted that he was growing the plants for his personal use.
[6] Mr Gatenby elected trial by jury. Pre-trial the admissibility of a statement made by him was challenged. This issue was the subject-matter of an s344A hearing which resulted in delivery of a reserved decision dated 31 August 2004. The statement was ruled in. On 18 October 2004, the commencement of a week in which the case was listed for trial on a standby basis, the appellant entered a plea of guilty.
[7] The appellant was sentenced by Judge B N Morris on 1 December 2004.

The sentencing remarks

[8] The Judge observed at the outset that the submissions of counsel identified a difference of opinion as to categorisation of the offending in terms of R v Terewi [1999] 3 NZLR 62 (CA). Crown counsel contended the offending involved small-scale cultivation for a commercial purpose warranting a starting-point between two and four years (being category 2 in Terewi), whereas Mr Hine contended the cultivation was for personal use, albeit of a significant number of plants.
[9] The Judge said in his sentencing decision:

Whilst Mr Hine mentions that there is no evidence of supply to other persons, no deal bags, no scales, no foil, no tick list etc, it is quite obvious to me from a common-sense point of view, as set out in the supporting data provided by the police, that the amount of plant, the degree of sophistication and the degree of subterfuge in the way that the matter was set up with the outdoor shed and the sheer volume of it must take it out of category 1 and my first finding is that it is category 2.

On that basis a starting-point of "around two and a half years" was adopted, in part to reflect the aggravating circumstance that this was a second offence of cannabis cultivation, from which the Judge made a deduction of three months for the "eleventh hour" guilty plea and thereby arrived at the effective sentence of two years three months.

[10] The "supporting data" referred to in the above passage was a reference to a brief of evidence tendered by a Detective Sergeant. His evidence set out further particulars of the cultivation shed, coupled with opinion evidence that the cultivation process was well set up and competently conducted. The witness expressed the opinion that these indoor plants could be harvested every 40-45 days which suggested the potential for four or even six harvests per year. The potential yield from the plants was estimated to be from 2 to 6 ounces of premium grade cannabis per plant. The value of an ounce of cannabis was detailed at $250 to $400. Finally the witness expressed the opinion that "the cannabis grown would far exceed that of one person’s consumption of cannabis on a day to day basis".

The appeal arguments

[11] Drawing on the threads that the appellant was not charged with possession of cannabis for the purpose of supply and that there was an absence of dealing paraphernalia, Mr Hine submitted "there was no evidence adduced whatsoever that could lead the Court to reach a finding that profit was the motive behind this cultivation". By reference to a number of cases which fell squarely within category 2 of Terewi, counsel contended that the present sentence of two years three months imprisonment was clearly excessive, even given the circumstances that Mr Gatenby was a mature offender with a significant previous offending history.
[12] By contrast Mr Lawry argued that the evidence plainly justified categorisation of the offending in the lower end of category 2. The low discount of three months for the guilty plea was said to be justified on account of the timing of the plea. In the result, therefore, the end sentence was well within the available range for a smaller scale commercial cannabis-growing operation.

Discussion

[13] There is an obvious problem with this case which existed both at sentencing and which persisted on appeal, but which was not squared up to in the competing arguments. The process to be followed where a significant fact is in dispute is indicated in s24 of the Sentencing Act 2002:

24 Proof of facts
(1) In determining a sentence or other disposition of the case, a court -

(a) may accept as proved any fact that was disclosed by evidence at the hearing or trial and any facts agreed on by the prosecutor and the offender; and

(b) must accept as proved all facts, express or implied, that are essential to a plea of guilty or a finding of guilt.

(2) If a fact that is relevant to the determination of a sentence or other disposition of the case is asserted by one party and disputed by the other, -

(a) the court must indicate to the parties the weight that it would be likely to attach to the disputed fact if it were found to exist, and its significance to the sentence or other disposition of the case:

(b) if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial:
(c) the prosecutor must prove beyond reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e) either party may cross-examine any witness called by the other party. (emphasis added)
[14] Here there was an obvious point of conflict. The appellant when apprehended and through to the time of his sentencing maintained that the cultivation was for personal use. The police did not accept that. The weight likely to be attached to the disputed fact was not articulated, as required by s24(2)(a). Even so, the dispute was sufficiently obvious to require counsel to seek the opportunity to adduce evidence, and cross-examine, as appropriate in the circumstances. In the end result the Judge made a finding adverse to the appellant when the process prescribed by s24 had not been followed.
[15] Can the finding of a commercial purpose stand? Section 24(2)(c) governs the position. Cultivation of cannabis may be for personal use or for a commercial purpose. The guilty plea, at least in the context of this summary of facts (which did not directly assert the existence of a commercial purpose), did not establish one purpose to the exclusion of the other. It follows that the existence of a commercial purpose was an "aggravating fact" in terms of s24(3)(a), being an fact asserted by the prosecutor which, if established, justified a greater penalty. The appellant’s personal use assertion, although dubious, cannot be rejected out of hand, as wholly implausible or manifestly false. Proof beyond reasonable doubt was necessary. The finding cannot stand.
[16] What then is to be done? In R v Chicoine, CA220/04, 21 March 2005, the Court was faced with a similar difficulty and decided that the proper course was to convene a hearing in terms of s24 to enable cross-examination in order to resolve the factual impasse. Before doing so consideration was given to referring the matter back to the High Court for a disputed fact hearing. But in the event it was decided to correct the deficiency in an appellate setting.
[17] Initially we were minded to remit the case back to the District Court for a disputed fact hearing. However, s385(3) of the Crimes Act provides:

On any appeal ... (against sentence) ..., if (the Court) thinks that a different sentence should have been passed, shall either quash the sentence passed and pass such other sentence warranted in law (whether more or less severe) in substitution therefore as the Court thinks ought to have been passed or vary, within the limits warranted in law, the sentence or any part of it or any condition imposed in it; and in any other case the Court shall dismiss the appeal.

We consider there is no power to quash a sentence and remit a case back to the District Court for a disputed fact hearing to be followed by a resentencing of the prisoner. Responsibility rests with this Court.

[18] Two approaches are open. The first is to conduct a disputed fact hearing in this Court. Such was done in Chicoine, but not without difficulty. We note that the initial hearing was in September 2004 and the disputed fact hearing in February 2005, no doubt in part a reflection of the difficulty involved in reconvening a three member divisional court. In this instance there is the further complication that Mr Gatenby has served almost five months of his sentence and his parole eligibility date is therefore about four months distant. If the disputed fact were not established by the informant, there is scope for him to have served a longer term than that which he may receive for cultivation of cannabis for personal use.
[19] In these circumstances we conclude that the only practical course is to determine the appeal as matters stand. The dispute concerned an aggravating fact. There was no hearing to resolve the conflict between Mr Gatenby’s denial, and the officer’s opinion that a commercial purpose was manifest. The onus of proof was not met.
[20] It follows that the case must be viewed as within Terewi category 1, although very much at its upper end. Given the extent, sophistication and yield potential of the operation we are satisfied that a starting-point of 18 months imprisonment is well justified. From that we allow a similar reduction of three months for the belated guilty plea, to arrive at an effective sentence of 15 months imprisonment. A grant of leave to apply for home detention is inappropriate because of the nature, and in particular the location, of the offending. Standard conditions of release are indicated.
[21] This outcome, we acknowledge, is less than satisfactory. The actual criminality involved in the offence was never established in terms of s24. The appellant may well be fortunate. The case serves to indicate the necessity to comply with the requirements of the statutory process.

Solicitors:
Martin Hine & Associates, Auckland for Appellant
Crown Law Office, Wellington

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[1]	The appellant was sentenced to two years three months imprisonment in the District Court upon a charge of cultivating cannabis. He appeals against that sentence essentially on the basis that the Judge erred by characterising the offending as for a commercial purpose, rather than cultivation of plants for personal use.
[2]	The case illustrates the difficulties which can occur when the requirements of s24 of the Sentencing Act are not met. That is where the significance of a disputed fact to the likely sentence is not articulated and, if sought, evidence called to facilitate a finding upon the disputed aspect by the sentencer.

[3]	On 29 October 2003 police officers executed a search warrant at a rural Northland address. Within the house they located 24 cannabis cuttings, which were under cultivation using an horticultural heating pad and a growing medium. Associated with the cuttings was a bucket containing a quantity of freshly cut cannabis leaf.
[4]	A short distance from the house the police located a shed which was camouflaged by foliage and the colour it was painted. The shed contained 40 cannabis plants. There were two mature mother plants and 38 seedlings which ranged from 20 to 45 centimetres in height. The shed was fitted with artificial lighting, a reflective lining and electricity and water supply. The growing operation was soil-based.
[5]	The appellant, who returned to the house during the course of the police search, accepted responsibility for the plants, said that he had constructed the shed about 18 months previously and asserted that he was growing the plants for his personal use.
[6]	Mr Gatenby elected trial by jury. Pre-trial the admissibility of a statement made by him was challenged. This issue was the subject-matter of an s344A hearing which resulted in delivery of a reserved decision dated 31 August 2004. The statement was ruled in. On 18 October 2004, the commencement of a week in which the case was listed for trial on a standby basis, the appellant entered a plea of guilty.
[7]	The appellant was sentenced by Judge B N Morris on 1 December 2004.

(b)	if a party wishes the court to rely on that fact, the parties may adduce evidence as to its existence unless the court is satisfied that sufficient evidence was adduced at the hearing or trial:
(c)	the prosecutor must prove beyond reasonable doubt the existence of any disputed aggravating fact, and must negate [beyond a reasonable doubt] any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)) that is not wholly implausible or manifestly false:
(d)	the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence or to the offender’s part in the offence:
(e)	either party may cross-examine any witness called by the other party. (emphasis added)
[14]	Here there was an obvious point of conflict. The appellant when apprehended and through to the time of his sentencing maintained that the cultivation was for personal use. The police did not accept that. The weight likely to be attached to the disputed fact was not articulated, as required by s24(2)(a). Even so, the dispute was sufficiently obvious to require counsel to seek the opportunity to adduce evidence, and cross-examine, as appropriate in the circumstances. In the end result the Judge made a finding adverse to the appellant when the process prescribed by s24 had not been followed.
[15]	Can the finding of a commercial purpose stand? Section 24(2)(c) governs the position. Cultivation of cannabis may be for personal use or for a commercial purpose. The guilty plea, at least in the context of this summary of facts (which did not directly assert the existence of a commercial purpose), did not establish one purpose to the exclusion of the other. It follows that the existence of a commercial purpose was an "aggravating fact" in terms of s24(3)(a), being an fact asserted by the prosecutor which, if established, justified a greater penalty. The appellant’s personal use assertion, although dubious, cannot be rejected out of hand, as wholly implausible or manifestly false. Proof beyond reasonable doubt was necessary. The finding cannot stand.
[16]	What then is to be done? In R v Chicoine, CA220/04, 21 March 2005, the Court was faced with a similar difficulty and decided that the proper course was to convene a hearing in terms of s24 to enable cross-examination in order to resolve the factual impasse. Before doing so consideration was given to referring the matter back to the High Court for a disputed fact hearing. But in the event it was decided to correct the deficiency in an appellate setting.
[17]	Initially we were minded to remit the case back to the District Court for a disputed fact hearing. However, s385(3) of the Crimes Act provides:

[18]	Two approaches are open. The first is to conduct a disputed fact hearing in this Court. Such was done in Chicoine, but not without difficulty. We note that the initial hearing was in September 2004 and the disputed fact hearing in February 2005, no doubt in part a reflection of the difficulty involved in reconvening a three member divisional court. In this instance there is the further complication that Mr Gatenby has served almost five months of his sentence and his parole eligibility date is therefore about four months distant. If the disputed fact were not established by the informant, there is scope for him to have served a longer term than that which he may receive for cultivation of cannabis for personal use.
[19]	In these circumstances we conclude that the only practical course is to determine the appeal as matters stand. The dispute concerned an aggravating fact. There was no hearing to resolve the conflict between Mr Gatenby’s denial, and the officer’s opinion that a commercial purpose was manifest. The onus of proof was not met.
[20]	It follows that the case must be viewed as within Terewi category 1, although very much at its upper end. Given the extent, sophistication and yield potential of the operation we are satisfied that a starting-point of 18 months imprisonment is well justified. From that we allow a similar reduction of three months for the belated guilty plea, to arrive at an effective sentence of 15 months imprisonment. A grant of leave to apply for home detention is inappropriate because of the nature, and in particular the location, of the offending. Standard conditions of release are indicated.
[21]	This outcome, we acknowledge, is less than satisfactory. The actual criminality involved in the offence was never established in terms of s24. The appellant may well be fortunate. The case serves to indicate the necessity to comply with the requirements of the statutory process.