The Queen v Shelford and anor [2006] NZCA 306 (13 November 2006)

Last Updated: 28 November 2006

IN THE COURT OF APPEAL OF NEW ZEALAND

CA175/06
CA187/06

THE QUEEN



v



CHARLES THOMAS SHELFORD
LANCE TUAKANA KINGI

Hearing: 17 October 2006

Court: Arnold, Randerson and Ronald Young JJ

Counsel: W C Pyke for Appellants
E M Thomas and K E Salmond for Respondent

Judgment: 13 November 2006 at 11.30 am

JUDGMENT OF THE COURT

A The appeal by Charles Thomas Shelford against conviction and sentence is dismissed.

B The appeal by Lance Tuakana Kingi against sentence is dismissed.

____________________________________________________________________

REASONS OF THE COURT

(Given by Randerson J)

Introduction

[1]	After a jury trial before Allan J in the Hamilton High Court, the appellants and another man were convicted of drug offending at a house on a secluded farm property on 24 November 2004. Mr Shelford was sentenced on 5 May 2006 to an effective term of three years and six months imprisonment while Mr Kingi was sentenced to three years imprisonment.
[2]	Mr Shelford appeals against both conviction and sentence. Mr Kingi appeals only against his sentence, an appeal against conviction having been formally abandoned.

The factual background

[3]	The appellants and a third man (a Mr Szeker) were the only persons present at the property when the police executed a search. The police found that the dwelling was virtually wholly given over to the production of drugs. One room contained approximately 312 cannabis seedlings and immature plants. Another contained some 61 larger cannabis plants. The police estimated that the potential yield from the larger plants would have been between $10,000 to $20,000 depending on the market in which the cannabis material was sold. The operation was capable of producing more than one harvest in a year so the gross annual yield would have been likely to exceed those figures by a considerable margin.
[4]	The police also found that electrical wiring at the address had been modified to by-pass the electricity meter, drawing electricity directly from the mains. The value of the electricity used was estimated to be just under $1,500.
[5]	The Judge described the cannabis growing operation as sophisticated and involving a heavy demand for electricity for heating, lighting and ventilation.
[6]	Also located in the house was a large quantity of chemicals capable of being used for the manufacture of methamphetamine. Items of equipment capable of the same use were found scattered about the house along with chemistry texts including a publication relating to methamphetamine manufacture. A hidden cavity under the floor of a bedroom was sufficiently large to accommodate large containers of chemicals and various items of equipment. Some of the items of equipment contained traces of methamphetamine and other substances, from which the Judge considered it was proper to infer that the equipment and chemicals had been used to manufacture methamphetamine in the past. There was also evidence to suggest that other persons had access to the house and that those other persons (who have not been located) may well have been involved in such manufacture.
[7]	The outcome of the trial was:

(a) Mr Szeker and Mr Shelford were each convicted on one count of cultivating cannabis and one of theft of electricity. (Mr Szeker pleaded guilty to these charges at the end of the Crown’s case while Mr Shelford was found guilty).
(b) Mr Kingi was found guilty on one count of possession of equipment capable of being used to manufacture methamphetamine and one count of possession of a precursor substance for the same purpose.
(c) All three were acquitted on one count of manufacturing methamphetamine and one count of possession of a pistol. Mr Szeker and Mr Shelford were acquitted on the charges of possession of equipment and precursor substances. Mr Kingi was acquitted on one count of cultivation of cannabis and one count of theft of electricity.

[8]	When sentencing, the Judge observed that the acquittals on the manufacturing charges were likely to have reflected uncertainty by the jury as to the role, if any, each of the men played in the manufacture rather than whether the manufacture occurred.

Mr Shelford’s appeal against conviction

[9]	The sole ground of appeal in Mr Shelford’s case is that the verdicts were unreasonable or could not be supported having regard to the evidence.
[10]	The Crown case against Mr Shelford on the cultivation charge was circumstantial. It depended on:

(a) Mr Shelford’s presence at the property when the police arrived.

(b) His admission that he had been a regular visitor to the house and that he had been into one of the cannabis growing rooms.

(c) Two sets of fingerprints belonging to Mr Shelford found in one of the cannabis growing rooms. The cannabis plants were found growing under fluorescent tubes with covering light shades. These were set at a height which could be reached easily from floor level. A print from Mr Shelford’s right thumb was found on the light shade or fitting and, significantly, prints identified as having come from Mr Shelford’s left thumb and forefinger were found on the fluorescent tube under the light shade.

(d) A notebook found in Mr Shelford’s possession contained a handwritten list including a reference to sodium nitrate. An ESR witness described this substance as being commonly used as a fertiliser. The ESR witness also stated that sodium nitrate had traditionally been used to make gunpowder or explosives. He was not able to say how the fertiliser might be used or, for example, whether it could be used to fertilise cannabis.

(e) A scabbard with the name "Charles" on it was found on a shelf in the living room. It was dusty, suggesting that it may have been there for some time.

[11]	In respect of the charge of theft of electricity, there was no direct evidence against Mr Shelford. The Crown relied on the jury drawing the inference from his involvement in the cultivation of cannabis that he must also have been aware of, and been a party to, the theft of electricity.
[12]	Mr Shelford did not give evidence at trial. He relied upon statements made to the police to the effect that he was a visitor to the house on the day in question and on earlier occasions over the preceding period of approximately two months. He was there for the purpose of purchasing cannabis. When asked whether his fingerprints might be on anything in the two cannabis growing rooms in the house, he responded that there might be some of his fingerprints in the second room. He was unable to say where his prints might be found but he acknowledged looking into one of the cannabis growing rooms. He had gone in the night before to have a look but he did not know if he touched anything when he did so. He denied having been in the other growing room.
[13]	Mr Shelford also told the interviewing officer that, upon the arrival of the police, he had grabbed two ounce bags of cannabis from the hot water cupboard in the house and dropped these bags along with some clothing in a nearby paddock as he was attempting to flee from the house.
[14]	Mr Pyke submitted on Mr Shelford’s behalf that a jury, acting reasonably, must have entertained reasonable doubt as to his guilt: R v Ramage [1985] 1 NZLR 392 at 393 (CA). He submitted that mere presence at the house was not a sufficient basis to sustain a conviction and that none of the other evidence, whether considered individually or cumulatively, provided a sufficient basis for a properly directed jury to convict. He submitted that the finger prints were not evidence of Mr Shelford’s involvement in cultivation but were consistent with his explanation that he entered the cannabis growing room simply as a purchaser of cannabis. His presence at the property and his possession of cannabis was also consistent with his statement that he was merely a purchaser. The scabbard did not take the police case any further because he admitted to being a visitor to the property on a regular basis. And, Mr Pyke submitted that the ESR evidence about the sodium nitrate fertiliser was inconclusive. Finally, Mr Pyke submitted there was no evidential basis of any kind for the conviction on the theft charge.

Conclusions

[15]	The case against Mr Shelford was undoubtedly weak but we are not taken to the point of concluding that a jury, acting reasonably, must have entertained a reasonable doubt. We accept the submission made by Mr Thomas for the Crown that the evidence relied upon by the prosecution must be considered as a whole. The high point of the Crown case was the fingerprint evidence. While the thumb print found on the light shade might have been capable of explanation on the basis of an innocent touching by Mr Shelford as an on-looker, it was open for the jury to infer from the fingerprints found on the fluorescent tube that Mr Shelford must have been a party to the cultivation by inserting or adjusting the fluorescent tube to assist with the growth of the cannabis plants.
[16]	While we accept that the reference to sodium nitrate in Mr Shelford’s notebook would not take the Crown case very far by itself, when combined with the other Crown evidence, it was further material upon which the jury could rely. The ESR witness stated unequivocally that sodium nitrate was a common fertiliser and it was open to the jury to infer in all the circumstances that Mr Shelford was involved in acquiring or supplying fertiliser for the purpose of the cannabis growing operation.
[17]	The Crown case proceeded on the basis that Mr Shelford was a party to the cultivation and that others (not before the Court) were the principal offenders. The Crown case did not set out to prove that Mr Shelford resided at the property. It did not need to do so since his admission of regular visits to the property was sufficient to establish his connection with the property.
[18]	We accept there was no direct evidence against Mr Shelford on the charge of theft of electricity but once the jury were taken to the point of being satisfied it was proper to convict on the cultivation charge, it was also open to the jury to infer that Mr Shelford must have known of, and been a party to, the theft of electricity.

Mr Shelford’s appeal against sentence

[19]	The Judge dealt with Mr Shelford on the basis that he took an active role in the cultivation of cannabis and that he was a knowing participant in the theft of electricity. He accepted that Mr Shelford was not the prime offender on the cultivation charge. The Judge rightly described Mr Shelford’s list of previous convictions as dismal. He had 57 previous convictions for serious violence, dishonesty, disorder, traffic and drug offences. The last drug conviction was in 1996 for cultivating cannabis. On that occasion he was sentenced to three years and nine months imprisonment. Prior to that he had been convicted in 1993 for possession of cannabis for supply, supplying a class A drug and offering to supply heroin. On that occasion he was sentenced to a total of 18 months imprisonment. Mr Shelford also had three convictions for possession of cannabis between 1982 and 1990.
[20]	The Judge noted that Mr Shelford was 55 years of age and that alcohol and drugs appeared to play a significant role in his life. Mr Shelford had told the Probation Officer that he used cannabis for alleviating pain arising from certain medical conditions and continued to deny that he was involved in anything other than purchasing cannabis.
[21]	The Judge considered that the cannabis cultivation fell within category 2 in R v Terewi [1999] 3 NZLR 62 (CA). That covered small-scale cultivation of cannabis plant for a commercial purpose. The starting point for sentencing in category 2 is generally between two and four years, but where sales are infrequent and are of a very limited extent, a lower starting point may be justified.
[22]	The Judge then stated:

Here there is no evidence of actual commercial sales beyond that provided by Messrs Shelford and Szeker in their own statements. But the sophistication of this growing operation and the number of plants involved leads irresistibly to the conclusion that this was a sustained operation aimed at producing several crops a year. A gross annual income of some tens of thousands of dollars was likely to have been derived from it.
In those circumstances a starting point of three years is appropriate on the cannabis cultivation count. To that I add six months in the case of both Mr Szeker and Mr Shelford. You each have several previous convictions for serious cannabis offences. That is a significant aggravating factor which must be appropriately reflected in the overall penalty.

[23]	The Judge was unable to find any mitigating circumstances which would warrant a reduction of the sentence below three years and six months for either Mr Szeker or Mr Shelford. A concurrent sentence of 12 months imprisonment was imposed on the charge of theft of electricity.
[24]	Mr Pyke’s principal submission in support of the sentence appeal was that the Judge had either failed to recognise that Mr Shelford was merely a party to the cultivation or, if he had, he did not give appropriate weight to that fact. He also submitted the Judge had disregarded Mr Shelford’s co-operation with the police.
[25]	We have no difficulty in rejecting Mr Pyke’s submissions on the sentencing appeal. The Judge plainly recognised that both Mr Shelford and Mr Szeker were not principal offenders. We are satisfied the Judge sentenced Mr Shelford on the basis that he was a secondary party to a substantial and sophisticated cannabis growing operation. Plainly, a sentence greater than three years could have been justified for a principal offender. We are satisfied that a starting point of three years was justified having regard to the scale of the operation. The addition of six months to recognise Mr Shelford’s previous convictions for drug offending was appropriate. The Judge correctly determined there were no mitigating factors relating to Mr Shelford personally. His co-operation with the police, such as it was, related only to his admission that he was a purchaser of cannabis. In that respect, he had been caught red-handed.

Mr Kingi’s appeal against sentence

[26]	Mr Kingi was 36 years of age and had spent some years in the territorial forces. Ultimately he was accepted into the regular army and had certificates of service which the Judge described as containing some highly complimentary remarks. The Judge noted that Mr Kingi had a supportive family and a rather more limited list of prior offences than the other offenders. There is a dispute as to whether two convictions for cannabis offending in 2000 were properly proved even though time was allowed for the Crown to investigate them. If they did occur, the penalties imposed were minor and we have decided to disregard them for present purposes. The pre-sentence report described his risk of re-offending as being low. He had never previously been sentenced to a term of imprisonment.
[27]	The Judge stated that Mr Kingi had separated several years ago from his long-term partner and had run into some bad company. Mr Kingi still denied the offending despite the finding of the jury against him. In that respect, the Judge said Mr Kingi’s fingerprints had been found on a number of items uplifted from the premises and there was ample evidence to show that Mr Kingi’s involvement with the precursor substances and equipment was more than just fleeting.
[28]	After observing there was no tariff or guideline case for possession of precursors or equipment and referring to a significant number of High Court decisions, the Judge adopted a starting point of three years. He regarded the fact that the operation was plainly commercial as an aggravating factor, as was the sheer scale of the materials found at the property. He did not consider there were any aggravating or mitigating circumstances which justified any increase or decrease in the three year starting point. As to Mr Kingi’s previous record the Judge stated:

Your previous record is limited but not sufficiently limited to constitute a mitigating circumstance.

[29]	The sole point taken on Mr Kingi’s behalf by Mr Pyke is that the Judge should have given Mr Kingi credit for his service to the country while in the army. Mr Pyke referred to s 9(2)(g) of the Sentencing Act 2002, which provides that the Court must take account of any evidence of an offender’s previous good character. He submitted that an offender who has been a responsible and contributing member of the community, and generally law abiding, should be entitled to credit for that record: R v Howe [1982] 1 NZLR 618 at 629 (CA).
[30]	Mr Pyke said that Mr Kingi had served in the army for five and a half years between 1989 and 1994. He continued to have a period of reserve liability after discharge. Prior to that period of service, he had served with the territorial forces for approximately 12 months. There was evidence before the Court of favourable references from senior army officers.
[31]	Mr Thomas accepted that an offender is normally entitled to some credit for a previous good record including service in the police or armed forces. But he submitted that, even taking this factor into account, the sentence was nevertheless within the range available to the Judge.
[32]	We accept Mr Thomas’ submission. Any credit for the appellant’s military service could not have been significant. It was not particularly lengthy nor deserving of special credit for any other reason. Any credit on that account could not have taken the sentence outside the available range nor rendered it wrong in principle.

Conclusion

[33]	The appeal by Mr Shelford against conviction and sentence is dismissed.
[34]	The appeal by Mr Kingi against sentence is also dismissed.

Solicitors:
Crown Law Office, Wellington