The Queen v McGilp [2006] NZCA 115; (2006) 23 CRNZ 526 (7 June 2006)

Last Updated: 21 December 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA124/06THE QUEEN

v

VINCENT JAMES MCGILP

Hearing: 29 May 2006

Court: O'Regan, John Hansen and Gendall JJ

Counsel: R J Bowden for Appellant
C L Mander for Crown

Judgment: 7 June 2006

JUDGMENT OF THE COURT

The appeal against sentence is dismissed.

REASONS

(Given by O’Regan J)

Introduction

[1] On 21 September 2004, the appellant and his brother were charged with cultivating cannabis under s 9(1) of the Misuse of Drugs Act 1975 over a three month period from June to September 2004. The appellant pleaded guilty after depositions, but disputed the police contention of commerciality. A disputed facts hearing before Judge Lance QC then took place. After this hearing, the Judge found the brothers’ operation had a commercial element. The appellant was sentenced to 12 months’ imprisonment. His brother received the same sentence.
[2] The appellant appeals his sentence to this Court.

Background

[3] The police search of the appellant’s property yielded 98 cannabis cuttings and seedlings and 58 cannabis plants. The police also found cannabis cultivation paraphernalia and a bag containing of 201 grams of cannabis material. The appellant’s brother’s diary recorded sales which netted about $3,320, but the Judge found $1,600 of that was inconclusive. The brothers accepted they were jointly responsible for the cultivation and the sales.

Sentencing remarks

[4] In his sentencing remarks, the Judge reiterated the factual finding that the cultivation had a commercial element. However, the Judge also found that the commercial element was ‘very, very much at the lower end of the scale’. He described it as a ‘marginal commercial element’. The Judge noted the reported sales (which he classified as relatively minor), and described the cultivation set-up as ‘amateurish’. The Judge summarised his findings in these terms:

The overall impression I gain is that you were... living a lifestyle in which cannabis was, to a degree, quite predominant. You were largely feeding your own needs and I suspect when you could not provide for those from traditional gainful employment, you resorted to some minor sales.

[5] The Judge then referred to this Court’s decisions in R v Terewi [1999] 3 NZLR 62 and R v Andrews [2000] 2 NZLR 205. He noted that both counsel accepted, given the Judge’s finding that the offending had a commercial element, that the appellant’s offending fell within category two as stipulated in Terewi. The Judge said despite the low-level commercial element there were sales, the operation had been going on for some time, and there were a large number of plants. In this regard he distinguished this Court’s decision in R v Edbrooke [2000] 3 NZLR 360.
[6] The Judge identified the commercial element and premeditation involved as aggravating features. The Judge identified the appellant’s lack of any previous convictions, insight into his offending and wish to engage in employment as mitigating features. Although the Judge felt the law required him to impose a term of imprisonment, he said he would depart from the strict application of Terewi and Andrews because of the ‘identified exceptional circumstances’.
[7] The Judge adopted a starting point of between 15 and 18 months’ imprisonment. Seemingly as a result of the appellant’s early guilty plea, this was lowered to a sentence of 12 months’ imprisonment. The Judge said he was going to give the appellant the maximum discount that he could.
[8] The Judge then considered the appellant’s application for leave to apply for home detention. After noting favourable pre-sentence reports, the Judge granted leave. We were told by counsel for the appellant, Mr Bowden, that the appellant had applied for home detention and was awaiting the outcome of the application at the time of the hearing of the appeal.

Appellant’s submissions

[9] Mr Bowden submitted that the introduction of the Sentencing Act 2002 called for this Court to modify the approach it takes when applying Terewi and Andrews. This submission relied upon statutory changes to sentencing practice.
[10] Prior to the Sentencing Act regime, judges were permitted to suspend a sentence under s 21A of the Criminal Justice Act 1985. Section 21A has now been repealed. The Sentencing Act does not allow for suspended sentences. Mr Bowden referred to Andrews, where Tipping J said on behalf of a Full Court (at [9]):

A case involving any commercial element must be regarded as falling into category 2, with the consequential restriction on suspension of terms of imprisonment which we have emphasised above. On reflection we consider it neither necessary nor helpful to refer to a twilight area between categories 1 and 2. If the commercial element is very small that factor can properly be reflected in a reduction of the normal starting point for a category 2 case as happened in Fenton, and similarly, as Terewi indicates, a very small amount may count as an exceptional circumstance justifying suspension. Thus the mandatory inclusion of a case with any commercial element in category 2 need not lead to undue rigidity because the amount can be reflected in an appropriately lower starting point and, if truly exceptional circumstances are present, in an order for suspension.

[11] Mr Bowden’s argument was that in Andrews, this Court used suspended sentences as a means of alleviating the rigidity of the categorisation in Terewi. Mr Bowden referred us Edbrooke, where Thomas J said at [10]:

Andrews is not intended to remove all flexibility in sentencing offenders who fall at the lower end of the second category in Terewi.

[12] Accordingly, Mr Bowden submitted that if Terewi and Andrews fell to be decided today, a different approach might be taken because Parliament had removed the suspended sentencing regime. The removal of this regime has rendered the effect of Terewi and Andrews unduly rigid. Thus, Mr Bowden suggested it was necessary to move the lower end of category two of Terewi downward, so as to encompass a lower starting point. Mr Bowden submitted this starting point might even extend to alternative sentencing options such as the imposition of a fine or a period of community service.
[13] Mr Bowden submitted that although the principal reason for not imposing a suspended sentence (when such a sentence was available) was to deter future drug offending, non-custodial sentences are not a ‘soft’ option. He cited this Court’s decision in R v Minto [1982] 1 NZLR 606 at 608 as authority for the proposition that the imposition of non-custodial sentences ought not to be regarded as an insignificant reaction by the courts.
[14] Mr Bowden submitted the availability of home detention did not alleviate the rigidity that Andrews imposes in relation to the lower end of category two from Terewi. He noted that the appellant had spent some time in prison while his application for home detention was processed.

Respondent’s submissions

[15] The thrust of the Crown’s submission was that the deterrence of others from cultivating cannabis remains the dominant sentencing consideration. When suspended sentencing was an available option, it could only be applied in cases where deterrence was not the dominant consideration. Counsel for the Crown, Mr Mander, cited this passage from Terewi (at [15]):

The paramount consideration is, we repeat, the deterrence of others, and by that means to reduce the prevalence of cannabis use and dependence in this country. Others who might be contemplating becoming involved in cannabis production or dealing will not be likely to be much deterred when they can see that, if detected, they are likely to escape imprisonment. Section 21A is not intended for such circumstances. It is directed at deterring re-offending by the person being sentenced – “by holding a prison sentence over the offender’s head” (R v Petersen [1994] 2 NZLR 533 at p 537), which is not the paramount consideration in sentencing for drug offending. In Petersen this Court said of s 21A at p 537:

“It is available to be used in cases of moderately serious offending but where it is thought there is a sufficient opportunity for reform, and the need to deter others is not paramount.” (Emphasis added.)

[16] Mr Mander pointed out that s 21A required that the imposition of a suspended sentence was contingent upon a court considering that a sentence of imprisonment was appropriate. Accordingly, it did not follow that with the abolition of suspended sentences a sentence of imprisonment, which prior to abolition would be viewed as appropriate, must now be viewed as inappropriate.
[17] Mr Mander also submitted that a court must consider carefully whether conduct falls within category two from Terewi. Judge Lance made extensive findings under this head and distinguished Edbrooke, a case in which the partner of a cannabis dealer was a passive participant in a commercial cannabis-growing operation and was held not to fall within category two. Judge Lance’s findings that the appellant’s offending fell within category two were clearly open to him.
[18] Furthermore, it was submitted that if a suspended sentence had been available, it would not have been imposed in the present case. Exceptional circumstances were needed. In Andrews this Court thought that the medicinal use of cannabis, coupled with post-arrest efforts at rehabilitation, did not constitute exceptional circumstances justifying suspension. The facts in the present case would not have favoured suspension to the same extent as those in Andrews.

Discussion

[19] We accept Mr Bowden’s submission that this offending was at the very lowest end of category two of Terewi. But we do not accept that the demise of a suspended sentence as a sentencing option requires a reassessment of sentencing policy for low-end commercial cannabis growing. In our view, the sentencing response by the District Court Judge in this case illustrated the fact that some flexibility in sentencing policy remains. The Judge felt able to adopt a starting point well below the two-four years referred to in Terewi, because of the very unusual features of the present case. He was right to do so.
[20] In Andrews, this Court made it clear that a suspended sentence would be available only in exceptional cases, and we are not convinced that this case would have qualified. In any event, the option of a suspended sentence was one which was available to a sentencing Judge only when it had been decided that imprisonment was an appropriate response to an offence. Now that that sentencing option has been removed, we do not see how it could be proper for a sentencing Judge to impose a sentence of community work in circumstances where he or she has determined, based on authority, that a sentence of imprisonment is required.
[21] In our view, the sentencing response in this case was a sensitive and appropriately lenient response. We do not accept that the resulting sentence was manifestly excessive or wrong in principle.

Result

[22] We therefore dismiss the appeal.

Solicitors:
Crown Law Office, Wellington