[1] The appellant appeals against a sentence of two and a half years’ imprisonment imposed in relation to offences of cultivating cannabis and the possession of cannabis oil, and cannabis plant, for the purpose of supply. Such sentence was imposed in relation to all three charges, but on a concurrent basis.
[2] The essential basis of the appeal is that the sentencing Judge, Judge Radford, erred in not giving substantial weight to the overarching influence and involvement of the appellant’s partner in relation to the offending. On this basis it is said that the sentence is clearly excessive and we were implored to intervene, reduce the term of the prison sentence and then substitute a sentence of home detention.

The factual background

[3] The summary of facts disclosed that in late April 2009 prison officers intercepted telephone conversations between the appellant and her former partner to whom we will refer as DJ. Although the participants spoke in code, the conversations were interpreted to relate to previous occasions when cannabis oil had been successfully smuggled into the prison and to a further planned smuggling operation. The appellant was instructed to deliver capsules of cannabis oil (not referred to as such) to an older person named “Joe” before the weekend.
[4] Inquiries established the existence of a man of that name, who was the father of an inmate in the same wing as DJ.
[5] As a consequence of the intercepted conversations the police obtained and executed a search warrant at the appellant’s home on 4 May 2009. She was present. In her handbag was found a package wrapped in black insulation tape so as to form a cylindrical object capable of internal concealment. When opened the package was found to contain 28 cannabis oil capsules having a total weight of 13.9 grams and 23.9 grams of cannabis.
[6] In the lounge of the house was an ice-cream container used for the storage of cannabis head. There was further cannabis found in two bowls in the kitchen and in a glass jar in the freezer. The total weight of cannabis plant located was 1.1 kilograms. There was also 840 grams of cannabis leaf, being inferior quality product. In a bedroom there were 67 cannabis plants drying from a wire hung from the ceiling. The police calculated that each plant would yield approximately three ounces of good quality cannabis. They considered that the total cannabis discovered had a potential street value of about $70,000.
[7] In a bedroom at the address an indoor cannabis growing operation was located. There was 10 small plants, 12 medium sized plants and eight mature plants. This was a standard, rather than a hydroponic, operation. The walls of the room were lined, lights were hung over the plants and there was a fan and extraction system. The meter box at the address had been tampered with to prevent the meter from reading the actual power usage. The police calculated that the growing operation had the potential to produce “300 ounces of cannabis head material with a street value of about $75,000”, but the correctness of this calculation was disputed.
[8] The appellant initially denied the charges and elected trial by jury. However, in March 2010 the appellant pleaded guilty on arraignment to the three charges. She was sentenced by Judge Radford on 25 May 2010.
[9] The previous month the same Judge had sentenced DJ in relation to a charge of conspiring to supply cannabis oil. This offence was founded on the intercepted conversations between the appellant and DJ. He was subject to a sentence imposed for sexual offending against children of the appellant. DJ was sentenced to 15 months’ imprisonment in relation to the conspiracy, such term to be cumulative upon his existing sentence.
[10] In sentencing the appellant the Judge viewed the charge of cultivating cannabis as the lead offence. In relation to it he established a starting-point of three years’ imprisonment. With reference to the cannabis oil found in the appellant’s possession, the Judge reasoned that an uplift from the three year starting point of one year sufficiently captured the added culpability involved in this aspect of the offending. He gave no separate consideration to the charge of possessing cannabis for supply, no doubt viewing this charge as an aspect of the cultivation operation itself.
[11] With reference to mitigating factors the Judge made an overall deduction of 18 months in order to arrive at the end sentences of two years and six months. He gave credit for the guilty pleas, the circumstance that the appellant offended under a “degree of duress” (but nonetheless “relatively independently”, and not simply as “a pawn in the hands of [DJ]”), and also in recognition of “some very personal issues”, including the violence that the appellant had suffered in the course of her life.

The basis of the appeal

[12] Mr Appleby, who was also counsel in the District Court, urged a range of matters in support of his central thesis that the Judge failed to appreciate the true character of the case and, in particular, the extent to which the appellant’s predicament was caused by the actions of her former partner. Our attention was drawn to numerous items of correspondence which came to light both before and after the sentencing. These were written by DJ and indicated that when he was imprisoned in March 2008 in relation to his sexual offending he left five “elbows” (i.e. pounds) of cannabis head in the house.
[13] This, counsel submitted, confirmed that cannabis cultivation occurred there much before May 2009 when the appellant was apprehended. The highpoint of the argument was to the effect that associates of DJ were responsible for sustaining the cannabis cultivation operation and that the appellant’s involvement with cannabis and cannabis oil, and in the initiative to smuggle drugs into the prison, was at the behest and insistence of DJ.
[14] Mr Appleby made related submissions directed to the quantity of cannabis and whether the street value calculations were reliable, or indeed realistic. The Judge was also criticised for failing to refer to various previous decisions which were referred to him by counsel. Finally, counsel relied upon “vile threats” contained in certain of the correspondence attributed to DJ.

Evaluation of these arguments

[15] The major ground of appeal suffered from a significant problem. Early in his sentencing remarks Judge Radford said this:

In the Probation Officer’s report, and I’ll come to that, you have indicated that you dispute significant portions of the summary, at least you indicated that to the Probation Officer. I have specifically asked if you accept the statement of facts, which is set out in the caption summary annexed to the Probation Officer’s report, and it has been confirmed that you do accept that statement and that I may sentence you on the basis that that is an accepted statement of facts. I record that so there is no misunderstanding at any later stage.

When referred to these observations Mr Appleby responded to the effect that the Judge warned counsel that if the appellant disputed the summary of facts she would “lose her discount for an early plea of guilty”. Hence, it was suggested, the appellant was denied the opportunity to urge her view of the facts in the District Court for this reason.

[16] We explored this response with Mr Appleby with reference to two points. The first is that R v Hessellprovides guidance concerning how a disputed fact hearing may impact in relation to the discount otherwise available for a plea of guilty.[1] In the first place, the proper course is to enter the guilty plea as soon as possible, leaving the disputed fact hearing for another day. In this way the advantage of an early plea is not lost. If it proves that the disputed fact hearing was ill-conceived and if, for example, witnesses were subjected to a hearing which should never have occurred, the sentencer “should re-evaluate whether the standard guilty plea discount remains appropriate”.[2]
[17] In light of Hessell and the matters expressly recorded in his sentencing remarks, we are concerned about the warning attributed to the Judge. Certainly, a report from Judge Radford would be required before we could entertain this argument. In the event, we have not found it necessary to call for a report.
[18] The second matter concerns s 24 of the Sentencing Act 2002. This section provides the mechanism for a disputed fact hearing. If the appellant wished to seek to mitigate her culpability on the basis of DJ’s actions and influence upon her, she had to initiate a disputed fact hearing in the District Court and establish on balance the interpretation for which she contended. Section 24(2)(d) required as much. Notice to the Crown and the Court would have been necessary, so that arrangements to resolve the dispute could be made.
[19] Yet when, absent any indication of a dispute, the Judge assumed the initiative at the commencement of his sentencing remarks and inquired whether the summary of facts was accepted or not, he received the response which we have already quoted.[3] In these circumstances, there is simply no scope for a mitigation argument of the kind that counsel endeavoured to advance in this Court.
[20] Counsel also submitted that the end sentence was clearly excessive given the level of offending disclosed in the summary of facts. Reference was made to a number of sentencing decisions in the High Court in relation to cannabis offending, and also to some decisions of this Court. We have considered these, but not found them of assistance. Generally, they were cases which raised unusual considerations, which in turn prompted particular sentencing responses.
[21] Returning to this case, there is no escape from the conclusion that the cannabis offending fell within category 2 of R v Terewi.[4] The three year starting-point, was within the available range in light of the quantities discovered upon execution of the search warrant and without the need to rely upon the more contentious street value calculations. The uplift of one year in relation to the cannabis oil charge was also unexceptional. If anything, this offence could have been viewed more seriously on account of the intention to smuggle the capsules into a prison.
[22] Having reached a four year starting-point, an allowance of one and a half years (37.5 per cent) was made in recognition of the guilty pleas, a degree of duress (coupled with the violence suffered by the appellant in her past), remorse and personal issues. The pleas were entered on arraignment and about 10 months after the appellant’s apprehension. The overall allowance made for the pleas and mitigating factors was generous if anything. In the result, the end sentence was unremarkable for offending on this scale.

Result

[23] The appeal is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

[1] R v Hessell [2010] 2 NZLR 298 (CA) at [46]-[48].
[2] At [47].
[3] Above at [14].
[4] R v Terewi [1999] 3 NZLR 62 (CA).

NZLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback
URL: http://www.nzlii.org/nz/cases/NZCA/2010/337.html