Campbell v R [2011] NZCA 579 (18 November 2011)

Last Updated: 24 November 2011

IN THE COURT OF APPEAL OF NEW ZEALAND

CA345/2011 [2011] NZCA 579

BETWEEN AARON REGINALD CAMPBELL Appellant

AND THE QUEEN Respondent

Hearing: 2 November 2011

Court: O'Regan P, Chisholm and Potter JJ

Counsel: C W J Stevenson for Appellant B F Fenton for Respondent

Judgment: 18 November 2011 at 10 am

JUDGMENT OF THE COURT

1. The appeal is allowed.
2. The sentence of three years imprisonment for cultivating cannabis is quashed and a sentence of two years and five months imprisonment is substituted.

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REASONS OF THE COURT

(Given by Chisholm J)

[1] On 23 December 2010 Judge Lynch sentenced the appellant to imprisonment for two years and one month for a spate of offending between March and October 2010. Subsequently, on 6 May 2011, Judge Dawson sentenced him to three years imprisonment for cultivating cannabis during August 2010, cumulative upon the sentence that he was already serving. The appellant had pleaded guilty to all charges.
[2] This appeal against the sentence imposed by Judge Dawson is advanced on the basis that the resulting overall sentence of five years and one month imprisonment was manifestly excessive. The primary issue is whether Judge Dawson gave proper weight to the totality principle.

The offending

[3] Judge Lynch sentenced the appellant on 13 charges: breach of community work; possession of equipment and cultivating cannabis; driving with excess breath alcohol (2); breach of protection order and trespass; breach of bail (2); providing false information; failing to stop; dangerous driving; and failing to accompany. Some of this offending occurred while the appellant was on bail for earlier offending.
[4] At the time the appellant was sentenced by Judge Lynch he had been arraigned for trial on a separate charge of cultivating cannabis. When he was arraigned on 21 February 2011 the appellant pleaded guilty to that charge.
[5] This offending was revealed when the police executed a search warrant at the appellant’s address. A total of 407 plants were found to be growing in various rooms. It was a relatively sophisticated operation, and a shotgun was also found to be hidden under a mattress in one of the rooms.

The appellant

[6] When he was sentenced by Judge Dawson the appellant was 34 years of age. He had 45 previous convictions, including two for cultivating cannabis (Judge Lynch had sentenced him for the most recent cultivation). He also had five other cannabis related convictions. The remaining convictions involved breaches of court orders, traffic offences and low level violence.
[7] The probation officer reported that drug use, criminal associates, and a “pro-criminal sense of entitlement” had contributed to the offending. It was reported that there was a medium risk of re-offending. According to the probation officer the appellant’s motivation towards rehabilitation had improved considerably since he was sentenced by Judge Lynch.

Sentencing by Judge Dawson

[8] After concluding that the offending was near the upper end of category 2 in R v Terewi[1] (starting point two–four years), Judge Dawson adopted a starting point of three years and nine months imprisonment. Then the Judge applied an uplift of three months to reflect the aggravating factors and the resulting notional sentence of four years imprisonment was reduced by six months to reflect mitigating factors.
[9] Having arrived at a sentence of three years and six months imprisonment Judge Dawson noted that the appellant was already serving a sentence of two years and one month and that the totality principle needed to be applied. Without further comment he made a reduction of six months, thereby arriving at the sentence of three years (cumulative on the sentence being served).

This appeal

[10] Mr Stevenson focused on the final step of the Judge’s sentencing process. He argued that the Judge had failed to consider the overall offending and that the resulting sentence of five years and one month was out of proportion to the gravity of the offending taken as a whole. He submitted that an overall sentence of four and a half years imprisonment would have properly reflected ss 8(g) and 85 of the Sentencing Act 2002.[2]
[11] In support of those propositions Mr Stevenson emphasised that other people were involved in the cultivation of cannabis and the appellant was not the instigator; he had pleaded guilty at an early stage; while Judge Dawson had reduced the sentence by six months to reflect totality there was no detailed analysis or reference to the offending for which the appellant had been sentenced by Judge Lynch; and Judge Dawson should have considered all the offending on a global basis.

Discussion

[12] In the situation confronting Judge Dawson it was necessary for him to assess the appropriate sentence for the cultivation of cannabis as if it was being dealt with as part of the offending for which the appellant had already been sentenced by Judge Lynch. While we acknowledge that the cultivation of cannabis for which the appellant was sentenced by Judge Dawson was reasonably serious, we agree with Mr Stevenson that once this offending is slotted into the overall offending the resulting sentence of five years one month imprisonment was manifestly excessive. In our view the appropriate sentence for the overall offending was four and a half years imprisonment. This means that the sentence imposed by Judge Dawson should have been two years five months imprisonment, not three years imprisonment.

Result

[13] The appeal is allowed and the sentence of three years imprisonment for cultivating cannabis is quashed. A sentence of two years five months imprisonment is substituted.

Solicitors:
Crown Law Office, Wellington for Respondent

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[1] R v Terewi [1999] 3 NZLR 62 (CA).

[2] In his written submissions Mr Stevenson had referred to four years, but in his oral submissions he accepted that such a sentence would have been too low.