R v Green [2011] NZCA 507 (30 September 2011)

Last Updated: 6 October 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA452/2011 [2011] NZCA 507

BETWEEN THE QUEEN Appellant

AND DAKTA GREEN Respondent

Hearing: 26 September 2011

Court: Harrison, Fogarty and Simon France JJ

Counsel: R J Collins for Appellant Respondent in Person

Judgment: 30 September 2011 at 11.45 am

JUDGMENT OF THE COURT

A Leave to appeal is granted.

2. The appeal is allowed. On the charges of selling cannabis, and possessing cannabis for sale, the existing sentences of eight months imprisonment are quashed. In their place we impose a sentence on each charge of 23 months imprisonment.

100. The existing sentence of three months imprisonment for permitting premises to be used is unchanged.

4. All sentences are concurrent.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

[1] The Solicitor-General seeks leave to appeal an effective sentence of eight months imprisonment imposed, following a jury trial, on charges of:

• (a) selling cannabis (representative charge): 19 November 2008 – 9 January 2010;
• (b) possessing cannabis for sale – 246 grams;
• (c) allowing premises to be used for the consumption of cannabis: 19 November 2008 – 9 January 2010.

[2] The sentencing Judge took a starting point of two years three months imprisonment.[1] This was reduced to 12 months for factors relating to the circumstances of the offending. A further four months was then allowed for personal factors – Mr Green’s age (61) and his bail conditions (relating to other alleged offending).
[3] The sole focus of the Solicitor-General’s appeal is on the correctness or otherwise of the initial reduction from a starting point of 27 months to an adjusted one of 12 months. Given this narrow focus, the facts can be briefly stated.

Facts

[4] Mr Green is an advocate for cannabis law reform. He established a club known as the Daktory where people could come and consume cannabis. Pivotal to the position in which Mr Green finds himself, members and visitors could also buy cannabis from him. Seemingly, there was literally a menu detailing the different types of cannabis plant available, with prices varying between $10 and $20 a gram.
[5] A search warrant was executed. There was found at the club numerous jars containing different cannabis strains. In total there was 246 grams of dried material. There were also growing plants concerning which Mr Green was charged and acquitted. There was played at trial a DVD which had been made at some point during the relevant period of the charges and which showed Mr Green in the process of making sales.

The 15 month reduction

[6] The starting point of 27 months’ was based on the standard authorities applicable to the sale of cannabis. The significant reduction from that occurred because the Judge considered the present case did not engage the same considerations as applied in those standard cases. In particular, the Judge considered this situation could not be likened to a tinnie house, and so a substantial discount was required.
[7] In setting out the factors which influenced the judge to make a 15 months reduction, we note that the basis on which Mr Green resists the appeal is that these points of difference were rightly considered by the Judge to be significant. The sentencing Judge noted:

• (a) this was not a situation of covert trade in an illicit drug for gain;
• (b) what was being gained was not going into the back pocket of the dealer but:

rather was being used to maintain the premises themselves, which would not have been cheap to run, and to maintain the bus which you used for a nationwide campaign to promote the cause for some time before this place known as the Daktory was opened. So in general the proceeds, such as they were, were not being directed towards commercial profit, but rather towards a cause;

(c) the offending was not done for commercial gain and was being committed openly. Further it was to some extent committed in a responsible manner in the sense that young persons were not served and the cannabis was consumed on-site.

Decision

[8] On occasion Courts have been prepared to see political motivation as a relevant mitigating factor in sentencing. In 1982 the principle was recognised by this Court in a trio of cases arising from the 1981 Springbok tour – R v Minto,[2] R v Burton[3] and R v Howe.[4] Subsequently, in R v Nathan[5] the Court recognised that an offender who damaged the America’s Cup was politically and morally motivated by concerns over the non-recognition of the Treaty of Waitangi. Whilst it did not make imprisonment inappropriate, the term was reduced.
[9] We do not see the present case as falling within the factors considered relevant in those cases. First, they involved isolated incidents of offending as opposed to sustained breaches spanning 14 months, and intended to continue into the future. Second, in none of those cases was there present the commercial aspect that arises with the present offending.
[10] We note that in R v Menzies this Court observed:[6]

As the Judge said, he [Menzies] was clearly prepared to offer cannabis for sale to those who wanted to buy it. His personal circumstances are of little relevance in such a case and his objection to the cannabis laws and political views on that subject provide no excuse for a deliberate breach of the law.

[11] We do not see that the way in which Mr Green invested any proceeds assists. The sole purpose of the Daktory was to provide a facility to enable others to breach New Zealand’s drug laws. That cannot provide a basis for reducing an otherwise appropriate sentence. Nor do we accept the offending is not commercial – Mr Green was supplying cannabis, at a price which varied accordingly to perceptions of the quality of the cannabis. It was commercial offending in the same way as a tinnie house is commercial offending.
[12] In his well presented submissions Mr Green stressed the advantages that the trial Judge enjoyed having presided over a five day trial. Whilst conceptually it is a valid point, the trial Judge’s advantages are not relevant to the matter of principle involved here.
[13] We do not consider there are any background features to the offending that justified a departure from the identified starting point of 27 months. It follows that the Solicitor-General’s application must be allowed, and the sentence revisited.

Final sentence

[14] The Solicitor-General was content to advance the appeal on the basis that the final sentence should be the 27 months starting point less the four month reduction for personal factors. Although there were points that could be taken about both, the reason for the appeal was the point of principle we have already discussed. Because it is a Solicitor-General appeal, and therefore well known principles of restraint apply, it is right that we record that this position properly reflects those principles.
[15] As regards a final sentence of 23 months it can be noted that:

• (a) it keeps in place credit for being subject to bail conditions while ignoring the fact that this offending occurred while subject to that same bail;
• (b) there is no uplift for past offending. As recently as July 2010 Mr Green received a sentence of conviction and discharge for relatively minor drug offending. But in 2003 he received a three year jail term for cultivation. That sentence included a one year discount in mitigation for Mr Green’s then avowed commitment to move away from cannabis offending;
• (c) it gives credit for Mr Green’s age, which at 61 is not a figure that normally attracts recognition;
• (d) it reflects a starting point that is at the lower end of what is appropriate for offending involving both protracted sales over a 14 month period (whatever be the actual quantities involved) and possession of 246 grams for future sales (a figure which must say something about the level of past sales).

[16] It is for these reasons that we consider an outcome of 23 months imprisonment more than adequately reflects the fact that it is a Solicitor-General appeal. The three factors identified (at [15] (a), (b) and (c) would otherwise have collectively justified a significant increase in the substituted sentence.

Conclusion

[17] Leave to appeal is granted, and the appeal allowed. On the charges of sale of cannabis, and possession of cannabis for sale, we quash the existing sentences of eight months, and substitute on each charge a sentence of 23 months imprisonment. The sentence of three months imprisonment for permitting premises is unchanged. All sentences are concurrent.

Solicitors:
Crown Law Office, Wellington for the Appellant

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[1] R v Green DC Auckland CRI 2009-090-4350, 29 June 2011.
[2] R v Minto (1982) 1 NZLR 606.
[3] R v Burton (1982) 1 NZLR 602.
[4] R v Howe (1982) 1 NZLR 618.
[5] R v Nathan (1997) 15 CRNZ 381.
[6] R v Menzies CA284/96, 26 September 1996 at 2.