Dixon v R [2011] NZCA 236 (1 June 2011)

Last Updated: 8 June 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA809/2010 [2011] NZCA 236

BETWEEN TROY ROBIN DIXON Appellant

AND THE QUEEN Respondent

Hearing: 9 May 2011

Court: Chambers, Venning and Courtney JJ

Counsel: H D M Lawry for Appellant K A L Bicknell for Respondent

Judgment: 1 June 2011 at 9 am

JUDGMENT OF THE COURT

A The appeal is allowed.

2. The sentences of four years nine months’ imprisonment on each charge are quashed.

100. In substitution therefor, sentences of four years’ imprisonment on count 2, one year’s imprisonment on count 1, and nine months’ imprisonment on count 3, all to be served concurrently, are imposed.
     

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REASONS OF THE COURT

(Given by Courtney J)

Introduction

[1] During searches of three Northland properties in July 2006, police found hydroponic cannabis operations and varying quantities of cannabis plants, seedlings and dried material. They charged the appellant as the person responsible for the cultivations. Eventually, on the morning his trial was due to start (4 October 2010), he pleaded guilty in the District Court at Whangarei to three counts of cultivating cannabis. Judge Moore subsequently sentenced him to four years nine months’ imprisonment.[1] This appeal against sentence is brought on the grounds that the starting point of six years taken by the Judge was too high and resulted in a manifestly excessive sentence.
[2] Sentencing proceeded on the basis of an agreed summary of facts. We note, however, that during sentencing the Judge referred to a remark allegedly made by the appellant as to the overall number of cannabis plants present. This statement did not form part of the agreed summary of facts and was, in fact, inconsistent with it. Conversely, in argument in this Court, Mr Lawry, for the appellant, sought to rely on an admission said to have been made by the prosecutor as to the nature of appellant’s role in the offending. This, too, was inconsistent with the agreed summary of facts and was disputed by the Crown at the appeal hearing. It is important that counsel for both Crown and defence ensure that where a plea is to be entered on the basis of an agreed statement of facts, care is taken to ensure that all the relevant facts are recorded accurately.
[3] The summary of facts recorded that the following quantities of cannabis plants and dried material were found:

• 93 cannabis plants at various stages of maturity were found at 109 Otaika Road, Whangarei. It was agreed that these plants would, if allowed to grow to maturity and then harvested, have given rise to product with a street value of $93,000: count 1.
• 266 cannabis plants at various stages of maturity were found at 32 Paranui Valley Road, Whangarei. The value of these plants once mature was estimated at $266,000. In addition, there were 17 kilograms of dried cannabis leaf and stalk with an estimated value of $2,000 and a further 1.5 kilograms of cannabis heads estimated at $3,500: count 2.
• 34 cannabis plants were found at 109A King Street, Hikurangi. Although a value was not put on these plants, we assume that they, like the others, would each have produced product with a street value of $1,000. This gives a total value of $34,000: count 3. The hydroponic operation at this address had been almost completely dismantled by the time the police searched.

[4] The Judge was therefore dealing with an operation comprising 393 plants with an overall potential value of about $400,000.

Appropriate starting point

[5] It was common ground that the starting point was to be fixed by reference to this Court’s decision in R v Terewi.[2] Under Terewi category 3 is the most serious class of cannabis offending, involving large scale commercial growing usually with a considerable degree of sophistication and organisation. Such cases attract starting points of four years or more. The assessment of whether an operation has the degree of commerciality justifying a starting point within category 3 of Terewi turns substantially on the amount of plants or dried material found, together with other indications of commerciality such as cash and indoor hydroponic growing conditions.
[6] The Judge viewed the set-up at the three addresses as being a single hydroponic operation and we think he was entitled to do so. His Honour assessed the offending as falling within category 3 of Terewi:

[8] So, what we are looking at, spread over these three growing places, is a criminal operation with an annual productive capability, in terms of wholesale prices of cannabis, of around $2 million. That is obviously only a ballpark figure. Nothing more is possible. But what it means in sentencing terms is that this is an operation very close to the top of the scale. I can only recall in Northland one larger one in terms of plant numbers. That was an outdoor operation where the cultivators were silly enough to have videoed the whole exercise. There was not much doubt about the scope of it.

[9] Generally the commercial cultivator, this is true in Northland or further south, often seems to go for a harvest crop of about 30 plants at any one time on a rotational basis, with the next lot coming on and the next lot coming on. They can achieve about a quarter of a million dollars a year.

[10] So one has to see this growing operation as requiring a sentencing starting point at, or very close to, the top of the scale. The Court of Appeal laid down a pattern many years ago in R v Terewi [1999] 3 NZLR 62. That is not of course an absolutely rigid pattern. One has to look at the details of each case rather than try to squeeze cases artificially into categories. On any view of what was discovered by the police here, it was not merely a commercial operation but a large-scale one.

[7] Mr Lawry did not challenge the general characterisation of the offending. Rather, he submitted that the starting point should also have been assessed by reference to the appellant’s role, which he suggested was less than that of an organiser. We note that this argument was advanced before the Judge and rejected. Mr Lawry also pointed to the fact that the appellant had received no or little money from the operation.
[8] We accept that there is no evidence of financial gain to the appellant from the operation. As we have already observed, however, the role the appellant played in the operation was not referred to in the summary of facts except to the extent of recording the appellant’s admission that he was responsible for the operation. On the basis of the summary of facts to which the appellant pleaded there can be no criticism of the Judge for proceeding on the basis that he did.
[9] The Judge did, however, err in his assessment that the operation had an annual productive capacity, in terms of wholesale prices of cannabis, of around $2m and was therefore close to the top of the scale of offending. There was no evidence of any sales from this operation. Unlike cases in which there is evidence of past cultivation and sales, here there was no basis for an inference as to the annual productive capacity of the operation. Therefore, treating the appellant’s offending as being close to the top of the scale would effectively result in him being sentenced for offending that had not occurred.
[10] Mr Lawry submitted that the offending was less serious than the offending in cases where starting points of six years had been approved. He suggested that the offending should have been viewed as being on the cusp of category 2 and category 3 with a starting point of five years. In particular, Mr Lawry compared this offending with R v Jury[3] and Leather v R.[4] Both cases, he submitted, involved worse offending than the present case and yet both attracted starting points of six years.
[11] In Jury the police found 589 plants and the case also involved an obviously long-term operation, money laundering and previous convictions on the part of the offender. A sentence of six years’ imprisonment coupled with a substantial fine ($250,000 substituted for $500,000 on appeal) was imposed in that case with the indication that the term of imprisonment would have been higher but for the fine.
[12] In Leather the sentencing Judge took a starting point of six years for cannabis cultivation that spanned four separate premises and over 1,000 plants together with dried material. All the premises were set up for hydroponic cultivation. There was additional offending which had led to an uplift of the starting point. However, there was no challenge to the six year starting point and the Court did not express any disquiet over it.
[13] Ms Bicknell, for the Crown, submitted that the six year starting point in this case was within range but acknowledged the comparison between this case and Leather.
[14] On the basis of comparable cases we conclude that the six year starting point was too high, even on the basis that the appellant was responsible for the operation. The appropriate starting point would have been five years.

The final sentence

[15] Although we have found that the starting point was too high this Court would not interfere unless the final sentence imposed was manifestly excessive. That requires consideration of deductions for the appellant’s personal circumstances and guilty plea.
[16] The Judge gave a discount of nine months for the appellant’s personal circumstances. These were not referred to in any detail in sentencing but we are satisfied that they justified that reduction. First, at age 31, the appellant was a first offender. Secondly, there was evidence that the appellant had had a difficult birth and suffered oxygen deprivation which resulted in some intellectual disability. He struggled with significant learning difficulties at school and has also had chronic health problems. Thirdly, the appellant has made real efforts to change his life since being arrested. In the four years between his arrest and sentence he had complied with bail conditions, held a stable job and cut his ties with the others involved in the offending. He was assessed as being at low risk of re-offending and, indeed, the probation officer had recommended home detention. In these circumstances, the Judge was entitled to give credit of nine months for the efforts that the appellant had made and to recognise the difficulties that he faced.
[17] The Judge also gave a discount of six months for the appellant’s guilty plea. This, we think, was too high. The appellant entered his plea on the morning of trial. The Judge’s discount was approximately 10 per cent. That is a greater discount than was sanctioned under the Court of Appeal’s guideline in R v Hessell,[5] the governing authority at the time of this sentencing. It is even more out of kilter with what the Supreme Court suggested in their revamped guideline.[6] The pleas were last minute; the Crown case was overwhelming. We consider that no more than a five per cent discount could be justified. We equate that to three months, bringing the final sentence to four years’ imprisonment.

Result

[18] The starting point taken at sentencing was too high and resulted in a sentence that was inconsistent with comparable cases and manifestly excessive.
[19] The appropriate sentence for all the offending was four years’ imprisonment, based on a starting point of five years with a discount of nine months for personal factors and three months for the guilty pleas. This is clearly a case for concurrent sentences, as Judge Moore recognised. This meant that “the most serious offence [had to] receive the penalty ... appropriate for the totality of the offending”.[7] The most serious offence here was count 2, which involved easily the biggest cultivation. We impose four years’ imprisonment for the count 2 offending. The other two offences must receive “the penalty appropriate” to them.[8] Count 1, after adjusting for mitigating factors, warrants one year’s imprisonment. Count 3 warrants nine months’ imprisonment.
[20] We allow the appeal and substitute those sentences.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Dixon DC Whangarei CRI-2006-088-3258, 1 November 2010.
[2] R v Terewi [1999] 3 NZLR 62 (CA).
[3] R v Jury CA148/02, 31 October 2002.
[4] Leather v R [2011] NZCA 59.
[5] R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298.
[6] Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607.
[7] Sentencing Act 2002, s 85(4)(a).
[8] Sentencing Act 2002, s 85(4)(b).