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Court of Appeal of New Zealand |
Last Updated: 20 June 2013
____________________________________________________________________
REASONS OF THE COURT
(Given by Chisholm J)
Introduction
[1] When the police searched Mr Wright’s property near Picton they found cannabis being grown in a shed on the property and that electricity meters had been tampered with. Mr Wright was charged with cultivating cannabis between 9 December 2004 (when Mr Wright acquired the property) and 16 September 2011 (the day following the search). He was also charged with stealing electricity during the same period.
[2] While disputing the duration and scale of the offending, Mr Wright pleaded guilty to both charges. Following a disputed facts hearing Judge Zohrab found that Mr Wright had been cultivating cannabis for just over two years preceding the search.[1] It was ultimately agreed that for sentencing purposes the value of the electricity that had been stolen was $1692.98.
[3] Mr Wright was sentenced to nine months home detention, 175 hours community work, and his interest in a property was forfeited to the Crown.[2] He was also ordered to pay $692.98 by way of reparation (he had already paid $1000). He appeals against that sentence on the ground that the sentence was manifestly excessive because the Judge: erroneously found that the cultivation had extended over two years; adopted a starting point that was too high; and erred in the exercise of his discretion when ordering forfeiture of the property.
Background
[4] The property comprises 1012m2. Apart from the dwelling it has two sheds which were described as the “green shed” and the “Totalspan” shed.
[5] When the police executed a search warrant they found a growing operation in the Totalspan shed. Two cannabis plants standing about 0.69m high and 88 seedlings ranging between 5cm and 15cm high were located, together with paraphernalia associated with the cultivation of cannabis. The grow room was divided into two separate rooms and the cannabis plants were located in the smaller half. Electricity meters recording the usage of power had been tampered with.
[6] Following his arrest Mr Wright was interviewed. He claimed that he had only just set up the operation, because he needed some money. Then he said he had set it up to save himself money, so that he did not have to buy cannabis.
Appeal against disputed facts findings
[7] A disputed facts hearing was held on 18 October 2012. Five witnesses gave evidence for the Crown. Mr Wright gave evidence on his own behalf and called one witness.
Evidence at the hearing
[8] The police constable who executed the search warrant and interviewed Mr Wright gave evidence about what he had found with reference to photographs. He also played the DVD interview. A police sergeant gave expert evidence to the effect that in his opinion personal usage would have required considerably less than the 90 plants located on the property.
[9] Both an electrical inspector and an investigator from TrustPower gave evidence about interference with the metering system and power usage. A meter that reads power consumption had been disabled, there was heat damage on the circuit supplying the Totalspan shed (which indicated overloading), and graphs and comparisons for the period since Mr Wright had become the consumer showed erratic and usual power usage.
[10] A financial analyst attached to the police gave evidence about her analysis of Mr Wright’s financial affairs between 1 April 2009 and 15 September 2011. She concluded that during this period Mr Wright had an unexplained cash income of at least $30,972.03.
[11] For his part Mr Wright claimed that the cultivation operation had only been set up two or three days before the search by a man that he had earlier met at a barbeque. Because of earlier incidents Mr Wright was not prepared to name the man. Mr Wright said that this person supplied all the equipment, that he had built the partition at the man’s direction, and that he was simply minding the operation for the man. Mr Wright also gave evidence about his employment with Sounds Air Travel and Tourism Ltd (part time since 2007) and claimed to have derived income from other sources including hunting, firewood, furniture-making, art and animal breeding. He was unable to provide receipts or other documentation.
[12] Mr Wright’s witness said that he had used the green shed for bone carving for about 18 months “around about 2006”. He said that no cannabis was being grown at Mr Wright’s address during that period.
District Court decision
[13] Judge Zohrab rejected Mr Wright’s story about a stranger setting up the cultivation operation as “so incredible as to be unbelievable”.[3] He listed numerous contradictions and inconsistencies in Mr Wright’s evidence and, having rejected it, turned to the balance of the evidence.
[14] The Judge found that a commercial cannabis growing operation had been conducted from the Totalspan shed after it had been built by Mr Wright in 2009. He noted that the low and erratic usage of power was “potent evidence that power consumption was not being accurately recorded over the total length of [Mr Wright’s] occupancy”.[4] While he accepted that Mr Wright had some income from other sources, the Judge found that this was not on a regular basis and did not account for the unexplained income.
[15] Judge Zohrab advised the parties that for sentencing purposes he would proceed on the basis that Mr Wright was solely responsible for the cannabis growing operation, it was for a commercial purpose, and that it had commenced shortly after the Totalspan shed was built.[5]
Appellant’s argument
[16] Ms Gould claimed that there was insufficient evidence to prove beyond reasonable doubt that the cultivation started in 2009 when the Totalspan shed was built. The arrival of the shed did not prove that the cultivation began at that time. At best it could only support an inference that cultivation could possibly have commenced at about that time.
[17] Unexplained income could not support the conclusion reached by the Judge. Mr Wright had given full details of his cash income and this evidence was not rebutted by the prosecution or explicitly rejected by the Judge. To establish cultivation over a two year period there would need to have been evidence of at least one earlier crop, and such evidence did not exist. Rather than applying the standard of proof beyond reasonable doubt, the Judge had arrived at his findings by guessing.
Our conclusions
[18] We agree with Ms Bicknell that on the evidence before him the Judge was entitled to draw the inference to the necessary standard that Mr Wright had been cultivating cannabis from soon after the Totalspan shed had been built and that it was a commercial operation.
[19] The following matters support that inference: the appellant admitted that he had paid for the Totalspan shed on 2 April 2009; he acknowledged that he had insulated the “little studio” in the shed soon after it was built; he also acknowledged that he had installed the partition in the shed (albeit at a later time and at the direction of the stranger); the cultivation took place in the Totalspan shed; there was significant unexplained income from 1 April 2009; electricity meters had been tampered with; and from the time Mr Wright had become a consumer recorded power usage had been unusual and erratic.
[20] We do not accept Ms Gould’s submission that the Judge failed to explicitly reject Mr Wright’s evidence about sources of income. To the contrary, having expressly rejected Mr Wright’s evidence as inconsistent and unreliable, the Judge stated:[6]
It was clear to the Court after cross-examination of the accused that it was difficult to accept that possum skins, puppies, firewood, birds, etc, and various forms of artwork and furniture were regular sources of income. I do not doubt on occasions he has sourced income in various ways, but I do not accept that these were in any way a regular source of income.
(Our emphasis.)
Given the patent contradictions in Mr Wright’s evidence and the absence of any receipts or other supporting documentation, those conclusions were plainly open to the Judge.
[21] There is no merit in this argument on appeal.
Appeal against sentence imposed
[22] As already mentioned, this revolves around the starting point and the order for forfeiture. To provide a context we start by providing a brief background about Mr Wright.
The appellant
[23] At the time of sentencing Mr Wright was 58 years of age (now 59). For present purposes his most significant earlier convictions are possession of cannabis for supply (1989) and cultivating cannabis (1982). Given their age, we will ignore earlier drug related convictions back in the 1970s.
[24] A report by a health board clinician indicates that Mr Wright had told her that he did not currently use cannabis. However, urinary screening showed that Mr Wright was still using moderate levels of cannabis on a regular basis. The probation officer recommended a community based sentence.
Sentencing in the District Court
[25] Judge Zohrab adopted a starting point of two years, eight months on the basis that the offending stood somewhere near the middle of Category 2 in R v Terewi[7] (two–four years for small scale cultivation for commercial purposes). While recognising that the previous offending of a similar nature was “getting on in time”,[8] he applied an uplift of four months for that offending, thereby arriving at an adjusted starting point of three years imprisonment.
[26] In relation to forfeiture the Judge proceeded on the basis that the property was valued at $171,000 and that Mr Wright’s equity was $25,000. He also accepted that the property was Mr Wright’s major asset and that at his stage of life it would be difficult for him to replace it if it was forfeited.
[27] Having recorded that he had found the issue of forfeiture troubling, the Judge decided that it was appropriate for there to be a forfeiture:
[36] ...because of your prior history of cannabis involvement, and prior commercial aspect, and because of the duration that this occurred over two years, and because of the clear commercial aspect to it. In my view, there is no hardship of the type that would suggest that I should not make such an order.
[37] I have struggled with the concept of the impact upon someone in your situation of forfeiture, because the figure that is sought by way of forfeiture here, the value of your interest is comparatively low when compared to other cases, but the outcome, for you, is significant. But, in my view, deterrence is paramount in cases of commercial drug offending, more especially when there is a prior history, however long ago it is, and in my view there is nothing that militates in your case against a forfeiture order.
After allowing a credit of one third (one year) for the forfeiture, five per cent for reparation and 15 per cent for the guilty plea, the Judge arrived at 19 months imprisonment.
[28] Given that Mr Wright was eligible for home detention, the Judge then imposed the sentence of nine months home detention, together with the other sentences already mentioned.
Appellant’s argument
[29] The starting point of three years was too high. Amongst other things this reflected an uplift of four months for previous convictions which had not been sought by the Crown, and was not justified. This error carried through and gave rise to a sentence that was manifestly excessive.
[30] Moreover, the Judge erred in principle by failing to consider whether partial forfeiture might have been justified. While the equity of $25,000 might not be a large sum, it was very significant to Mr Wright. The Judge’s approach was contrary to Mackie v R,[9] Macpherson v R[10] and R v Middleton,[11] and failed to allow sufficient credit for the good work record of this “salt of the earth” man and other mitigating factors.
Our conclusions
[31] Although we accept that the ultimate starting point of three years was near the upper end of the range available to the Judge, we are satisfied that it was still within the range. This reflects that the cultivation extended over two years, the appellant had previous convictions (albeit relatively historical) for offending of a similar nature, and there was an associated theft of electricity.
[32] On the other hand, we have concluded that, when coupled with the other components of the sentence, forfeiture of a 100 per cent interest in the property was disproportionate to the totality of the offending and Mr Wright’s circumstances. In other words, it gave rise to a sentence that is manifestly excessive. We also note that, like Mackie, there is no indication, at least on the face of the Judge’s sentencing remarks, that partial forfeiture was considered.
[33] We have decided that the order for forfeiture should be replaced with an order for forfeiture of a 50 per cent interest in the property. This reflects the following factors:
- (a) The property was purchased with funds from a legitimate source and occupied for several years for legitimate purposes.
- (b) While the operation was of a commercial nature, its sophistication was relatively limited.
- (c) Although Mr Wright has previous convictions, they were more than 20 years ago.
- (d) Mr Wright pleaded guilty.
- (e) Mr Wright’s $25,000 equity in the property, while not a substantial sum, was his only significant asset. At the age of 59 he will find it very difficult to re-establish himself if 100 per cent of that equity is forfeited.
- (f) The other components of the sentence (home detention, community work and reparation).
- (g) The purposes and principles in the Sentencing Act 2002.
Outcome
[34] The appeal is allowed in part. The order for forfeiture of 100 per cent of the appellant’s interest in the property near Picton is quashed, and is replaced with an order for forfeiture of 50 per cent of that property. In all other respects the appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v Wright DC Blenheim CRI-2011-06-1911, 23 November 2012 [the disputed facts decision].
[2] R v Wright DC Nelson CRI-2011-06-1911, 15 January 2013 [the sentencing decision].
[3] Disputed facts decision at [207](a).
[4] At [207](i).
[5] At [217].
[6] At [207](l).
[7] R v Terewi [1999] 3 NZLR 62 (CA).
[8] At [14].
[9] Mackie v R [2012] NZCA 588.
[10] Macpherson v R [2012] NZCA 552.
[11] R v Middleton [2012] NZHC 2869.
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