R v Gillan CA103/05 [2006] NZCA 54; [2006] 2 NZLR 781 (30 March 2006)

Last Updated: 16 January 2018

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IN THE COURT OF APPEAL OF NEW ZEALAND

CA103/05

THE QUEEN



v



JASON ERIC GILLAN

Hearing: 15 March 2006

Court: William Young P, Robertson and Cooper JJ

Counsel: M D Downs and E A Gambrill for Crown
G J King Amicus curiae

Judgment: 30 March 2006

JUDGMENT OF THE COURT

The question, “Can growing cannabis plants be the subject of a charge of possession of cannabis for the purpose of sale?” is answered in the negative.
____________________________________________________________________

REASONS

(Given by Robertson J)

Introduction

[1] On 16 March 2005, Judge Abbott (acting pursuant to s 380(1) of the Crimes Act 1961), reserved for the opinion of this Court the following question:

Can growing cannabis plants be the subject of a charge of possession of cannabis for the purpose of sale?

For the reasons which follow we answer that question in the negative.

Background

[2] On 31 December 2003 the police executed a search warrant at the respondent’s address in Shannon Street, Bluff. Locked in the basement the police found a large sealed wooden container with a small door in it. In this was a small polystyrene container with a built in heat lamp. Inside the container were 11 small cannabis seedlings. In the larger wooden container, a further nine seedlings and a “mother” plant were found. Nearby in the basement the police located a growing room constructed out of wood panelling which had a narrow entranceway hidden by a blanket. Inside this room was a sophisticated growing operation with three large electric growing lights suspended over 24 mature cannabis plants.
[3] The respondent was indicted on charges of cultivation of cannabis and possessing cannabis for sale or supply. The latter charge was laid under s 6(1)(f) of the Misuse of Drugs Act 1975 (“the Act”). Both charges focussed on the cannabis which was being grown. The respondent was prepared to, and in the end did, plead guilty to the cultivation charge. But he denied that there was any element of commerciality to his operation. The Crown proffered the charge of possession of cannabis for supply on the assumption that a conviction on that count would obviate the necessity for it to prove commerciality at a disputed facts hearing. The Crown intended at trial to rely on the presumption created by s 6(6) of the Act.
[4] Judge Abbott, however, concluded that growing cannabis plants could not be the subject of a charge of possession of cannabis for the purposes of sale. Consequently he directed the jury to find the respondent not guilty on the charge of possession of cannabis for sale but reserved for this Court the question recorded in [1].

The legislation

[5] The charge on which the respondent was acquitted on the Judge’s direction, alleged the possession of a “controlled drug”, namely “cannabis plant”. Section 2 of the Misuse of Drugs Act 1975 defines a “controlled drug” as:

Any substance, preparation, mixture or article specified or described in the Schedule 1, the Schedule 2, or the Schedule 3 to this Act; and includes any controlled drug analogue.

[6] The Third Schedule, which lists Class C controlled drugs, includes:

Cannabis fruit

Cannabis plant (whether fresh, dried or otherwise). That is any part of the plant of the genus Cannabis except the part from which all the resin has been extracted.

Cannabis Seed.

The definition of cannabis plant was amended in 1982 from “fresh or dried” to “whether fresh, dried or otherwise” (Misuse of Drugs Amendment Act 1982, s 8). This amendment was part of a package of amendments which aimed to clarify the distinction between cannabis preparation (a Class B controlled drug) and cannabis plant (a Class C controlled drug).

[7] Under s 6(6) of the Act, the presumption applies where the offender is in possession of:

28 grams or more of cannabis plant as described in the Third Schedule to this Act ... .

[8] The cultivation charge was laid under s 9 of the Act and which deals with the cultivation of a “prohibited plant”. This expression is defined in s 2 as including, “[a]ny plant of the genus Cannabis”.

Judge’s reasoning

[9] In his reasons for the ruling referred to in [4], the Judge said:

In my view there are powerful indicators in the Act and its history which suggest that it was never the intention of Parliament that a growing crop of cannabis should be able to be the subject of both a charge of cultivating cannabis and a charge of possession of cannabis for sale.

[10] He conducted a detailed analysis of the legislative history of the relevant provisions (and their amendments), and articulated eight reasons for his view of the law:

(a) The Act draws a clear distinction, in s 2, between “controlled drug” and “prohibited plant”. A controlled drug must be a “substance, preparation, mixture, or article”, while a prohibited plant must be a plant “from which a controlled drug can be produced” or “which contains a controlled drug”. A growing cannabis plant falls easily within the prohibited plant definition but sits uneasily in the controlled drug definition;

(b) If Parliament had meant a growing plant could be a controlled drug it would have said so;

(c) The presumptive quantity in s 6(6) of 28 grams points against including growing plants in the definition of a Class C controlled drug. This quantity was selected in the Act as it was an amount commonly used by dealers. The amount sits uncomfortably with a growing plant which includes both stalk and leaf, the weight of which will constantly change and could trigger the presumption;

(d) The amendment to the meaning of “cannabis plant” in the Third Schedule to the Act to be “fresh, dried or otherwise” did not mean that Parliament intended to include growing plants. The Judge found that these changes were associated with other amendments, which aimed to clarify the meaning of “cannabis preparation” that make cannabis a Class B rather than Class C drug.

(e) The list in Part I of the Third Schedule referring to “cannabis fruit”, “cannabis plant” and “cannabis seed” suggests that Parliament did not intend “cannabis plant’ to include a growing plant;

(f) The explanatory part of the definition of “cannabis plant” in Part I of the Third Schedule, namely “any part of any plant of the genus Cannabis except a part from which all the resin has been extracted” cannot be read as indicating that Parliament intended it to include a growing plant;

(g) The mischief that s 6 is directed towards is dealing in controlled drugs, that is transactions involving drugs being sold or supplied to other persons. Section 6(1)(f) rendered not only actual dealing but possession with the intention of dealing a criminal offence; and

(h) Sections 6 and 9 were enacted simultaneously and have comparable maximum sentences, thus, Parliament intended that cultivating cannabis could be regarded as of equivalent seriousness as presumptive dealing.

[11] The Judge concluded that:

My analysis means that the status of a cannabis crop changes when it is harvested. Prior to being harvested the crop is covered by section 9, but on being harvested it is then caught by either section 6 (if it is intended for sale, either wholly or in part) or section 7 (if it has been grown for personal use or non-commercial sharing or giving.

[12] Judge Abbott referred to R v Walker CA356/01 25 July 2002 where this Court had emphasised that R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 related only to cultivation offending and not to actual or presumptive cannabis dealing offending. He also noted two Court of Appeal decisions which proceeded on the assumption that growing cannabis plants could be the subject of a charge of possession for supply: R v Pattison (2002) 19 CRNZ 406; R v Siloata [2004] NZCA 144; [2005] 1 NZLR 182. As he noted, in neither of these cases was the issue argued.

The competing arguments

Crown

[13] Mr Downs submitted that there was nothing in the Act which precluded a charge of possession for the purposes of sale when a person was found growing cannabis. He argued that the decision whether or not to lay such a charge in those circumstances was part of the prosecutorial discretion which, under s 10 of the Crimes Act 1961, was preserved. He argued that the use of the charge might be necessary in appropriate cases to reflect the gravity and scale of the offending. It would not be used as a matter of course.
[14] Counsel contended that the s 2 definition of “controlled drug” was permissive. He contended that the logical and natural construction was that a Class C controlled drug included a live cannabis plant and noted that the definitions of cannabis plant and controlled drug served different purposes. The latter must be broader than the former so as to cover all classes of drugs in whatever form.
[15] Mr Downs argued that the purpose of the 1982 amendment was to better define and identify cannabis resin and cannabis derived Class B controlled drugs and did not tell against the Crown’s construction.
[16] He further submitted that the availability of the charge in issue should be distinguished from the implications arising from it being proffered. He conceded that more than one charge being laid in relation to the same incident could give rise to issues of fairness and abuse of process. However, he drew attention to the cases of R v Clarke [1982] NZCA 11; [1982] 1 NZLR 654 (CA) and R v Turanga [1993] 1 NZLR 685 (HC) and argued that the common law was sufficiently flexible to deal with problems like this on a case by case basis.

Amicus curiae

[17] Mr King submitted that Judge Abbott was correct in his interpretation and the conclusion he reached and counsel adopted his reasoning. Mr King added the following points to the Judge’s statutory interpretation:

(a) The Act did not expressly provide that a growing cannabis plant was a Class C controlled drug. The Crown relied on the “or otherwise” qualification in the Third Schedule; and

(b) If Parliament had intended a ‘reverse onus’ or ‘presumption of sale’ to apply in respect of growing plants then such an onus would have been expressly incorporated into the structure of s 9.
[18] He submitted that, on a plain interpretation of the Act, Parliament intended growing plants to be the subject of cultivation charges and not possession for sale charges. A person who grew a cannabis plant could adequately and properly be punished as a cultivator. He argued that Parliament did not legislate for different categories of cultivation offences, as it did in the case of possession. He contended that Parliament must have seen the scale and purpose of cultivation as a sentencing issue rather than a charging issue.
[19] Mr King further argued that there was no justification for a cultivator to be charged with both cultivation and possessing for sale the same growing cannabis plants. He contended that this would inevitably lead to the offender being punished twice for the same action. He said that even where sentences imposed for the two offences were to be served concurrently, the fact of having two convictions instead of one may have other implications, for example under the Bail Act 2002. He submitted that this should not be left to prosecutorial discretion.
[20] Mr King noted that the only advantage to the Crown in laying a possession for sale charge was that the issue of commerciality in cultivation would be presumptively established. He said that Parliament had provided, in the Sentencing Act 2002, a mechanism to resolve factual disputes and that this should be preferred as it placed the onus on the Crown to prove aggravating circumstances. He submitted that if Parliament had intended the reverse onus to apply in the cultivation context it could easily have said so. He further argued that the reverse onus did not sit well with the notion of a growing living plant as most of it was not consumable and had a high water concentration. When Parliament set the threshold at 28 grams it obviously had in its mind the consumable product. If the presumption applied to growing plants then nearly every cannabis cultivation operation would be affected (including that of just a single plant).

Discussion

[21] We note that, although the question reserved by Judge Abbott relates to possession of cannabis for the purpose of sale, the same reasoning will apply to possession for the purpose of supply.
[22] Under s 24(1)(b) of the Sentencing Act 2002 a court must accept as proved all facts expressed or implied that are essential to a plea of guilty or a finding of guilt. Consequently, if an accused is found guilty of possession because of the operation of the presumption under s 6(6) of the Act, the Judge will be obliged to sentence on the ground that the drug was held for a commercial purpose. By contrast a cultivation conviction on its own does not establish a commercial purpose: R v Gattenby CA511/04 28 April 2005. There is, however, one refinement which should not be ignored. The presumption does not necessitate the conclusion that all the material was held for the purposes of sale or supply, a distinction discussed in R v Shelford CA3/06 22 March 2006.
[23] The issue raised by this case is not isolated. For instance, in Siloata (reported in this Court at [2004] NZCA 144; [2005] 1 NZLR 182 and in the Supreme Court at [2005] 2 NZLR 145) the appellant had entered a plea of guilty to a count of cultivating cannabis. He then stood trial on a charge of being in possession for the purposes of supply contrary to s 6(1)(f) of the Act with regard to the self same material. The point now before us did not arise as a matter of concern at trial in the District Court or in either of the subsequent appeals.
[24] On the essential issues in the case we agree with the Judge and with the reasons which he gave. Of these, the most persuasive, in our view is the specification of 28 grams of “cannabis plant” as the weight at which the presumption for sale or supply arises. The root system, the stem and much of what is generally referred to as ‘cabbage’ are of either no or little interest to those in the drug fraternity.
[25] It has been asserted, not least in recent argument from the Crown before the Supreme Court in R v Hansen SC58/2005 heard on 22 February 2006 that the presumptive limits for supply in the legislative regime generally have been carefully determined on the basis of best available scientific knowledge and experience to reflect the realities of the drug trade. An interpretation of the expression “cannabis plant” in s 6(6) which would enable the presumption to be invoked in respect of a growing cannabis plant which might be not much more than a seedling would seriously undermine the integrity of that assessment.
[26] It is instructive to note that in parts of Australia, separate offences have been created with higher maximum penalties where cultivation is for the purposes of sale or supply. Cultivation offences are categorised by the number of plants grown. In the Australian Capital Territory (Criminal Code 2002, ss 616(5) and 617) there is a rebuttable presumption that if more than ten cannabis plants are cultivated the plants have been grown for the purpose of drug “trafficking”. If more than 100 plants are cultivated then a commercial purpose is assumed, and where more than a 1000 plants are found a large commercial purpose is assumed (Criminal Code 2002, subss 616(1) and (3)). In these last two categories the Australian Capital Territory Legislature has imposed absolute liability upon the finding of the requisite number of growing plants (Criminal Code 2002, subss 616(2) and (4)). The Criminal Code 2002 also draws an express distinction between “controlled drugs” and “controlled plants” (s 600) and, hence, there is no need to adopt a strained or artificial meaning of controlled drug. A similar approach is found in New South Wales (Drug Misuse and Trafficking Act 1985, s 23) and in Western Australia (Misuse of Drugs Act 1981, ss 7 and 11).

Result

[27] Accordingly we answer the question in the negative.

Solicitors:
Crown Law Office, Wellington