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Court of Appeal of New Zealand |
Last Updated: 27 August 2013
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IN THE COURT OF APPEAL OF NEW ZEALAND
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BETWEEN
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Appellant |
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AND
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Respondent |
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Hearing: |
24 July 2013 |
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Court: |
White, Goddard and Simon France JJ |
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Counsel: |
Appellant in person
M H Cooke for Respondent |
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Judgment: |
JUDGMENT OF THE COURT
A The appeal against conviction is dismissed.
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REASONS OF THE COURT
(Given by Goddard J)
[1] The appellant was convicted by a jury of four charges of selling cannabis and one charge of cultivating cannabis. He represented himself at trial with the assistance of an amicus. He was sentenced to 12 months’ home detention.[1] He now appeals against both conviction and sentence.
[2] The appellant was again assisted by a McKenzie friend in this Court. The friend, Ms Purchas, although a qualified lawyer, does not currently hold a practising certificate, but, in the particular circumstances of this case, was given leave to address the Court on certain aspects of the appellant’s appeal.
[3] There are five grounds of appeal against conviction. In relation to the appeal against sentence, the grounds are that the sentence was manifestly excessive or wrong in principle.
Background facts
[4] The appellant is an activist who promotes the medical use of cannabis through a website styled GreenCross. GreenCross is the name of an organisation which seeks a change in the law to make raw cannabis available for medicinal purposes.
[5] Activities on the website, relating to the sale and distribution of cannabis plant, attracted the attention of police and an investigation was commenced into those activities.
[6] The investigation involved the deployment of a police officer in a covert role, using an assumed name.
[7] In February 2010 the officer telephoned the contact number on the GreenCross website and spoke with the appellant. The officer explained he suffered from migraines and that doctors had been unable to help him. The appellant recommended hemp oil, which may be legally sold in New Zealand, to assist with the pain. Subsequently the officer purchased $25 of hemp oil through the appellant.
[8] Over the next four months there was sporadic communication between the officer and the appellant, mainly by email, during which further purchases of hemp oil were made and during which the officer also expressed enthusiasm for purchasing cannabis, referred to in their communications by the appellant as “raw medicine”. The appellant told the officer that only GreenCross card holders could obtain cannabis and encouraged the officer to join the organisation, and become a full member with a medical exemption.
[9] Over the course of a year the officer purchased cannabis from the appellant on four occasions, in the following amounts and at the following prices:
(a) 23 June 2010 – two full matchboxes of cannabis plant material – $40;
(b) 7 July 2010 – two matchboxes of cannabis (around 5 grams) – $40;
(c) 9 July 2010 – courier parcel containing approximately 11 grams of cannabis – $100; and
(d) 25 May 2011 – approximately 17 grams of cannabis plant material and some hemp oil – $125.
[10] On 8 July 2011 police executed a search warrant of the appellant’s home, where they located 66 cannabis plants under a trap door in a bedroom. The plants ranged in size from seedlings to mature budding plants.
The appellant
[11] The appellant is a 58 year old man who has held firm views on the medicinal benefits of cannabis for a number of years. While in his mid twenties he underwent a high amputation of one leg. This was the result of injuries sustained in a hit and run accident shortly before his 21st birthday. Ultimately his leg, which was badly crushed, was unable to be saved. Prior to amputation the appellant suffered considerable pain and following amputation has continued to suffer from ongoing spasms and pain. He says he found self-medication with cannabis brought him the most effective relief.
[12] The appellant did not give evidence at his trial but made a reasonably lengthy closing address to the jury, during which he canvassed his personal history and the purpose and policy of GreenCross. Also, his efforts to change the laws relating to cannabis use in New Zealand, submitting that cannabis research indicates that many serious illnesses can be cured or helped by use of small amounts of cannabis oil, relatively inexpensively and with minimum side effects. He also emphasised that the undercover officer had approached him to obtain cannabis. He referred to the amount of effort he had put into running GreenCross in order to assist others and to the consequences of a guilty verdict, in terms of maximum punishment and likely future difficulties with obtaining visas to travel overseas.
[13] Many of the matters the appellant adverted to in closing, and in particular his references to penalty and other consequences, were not relevant to issues of guilt or innocence and could have caused a mistrial had they been referred to by counsel.
Appeal against conviction
[14] The first three grounds of appeal were related. They concerned first a submission that, pursuant to the New Zealand Bill of Rights Act 1990 (BORA), the Magna Carta and unspecified conventions, the courts can “overrule, repeal, revoke, amend or not apply provisions of the law” which are inconsistent with BORA and which contravene “Justice or Right” under cl 39 of the Magna Carta 1215.
[15] The second and related issue was said to concern “Jury Nullification”, a doctrine contended to be in effect in New Zealand. What it seems the appellant meant here is that on occasion a jury might return a verdict that appears to be against the weight of evidence, usually referred to as a perverse verdict. There is no issue that, in some cases, a jury properly directed may appear to return such a verdict. As reasons are not required for a jury verdict, the basis for such a verdict is unknown.
[16] The third related ground of appeal was that the trial Judge, Judge Morris, had misdirected the jury in a number of respects by effectively telling them to ignore their consciences. A number of examples from the Judge’s summing up were cited in support of this contention. However, it is clear the Judge directed the jury on standard lines to reach their verdicts according to the evidence and to put aside feelings of prejudice or sympathy. In the context of the defence, as run at trial, the Judge also advised the jury that the trial situation was not the forum in which to lobby for legislative change.
[17] The appellant takes the view that the directions given to the jury in these regards were a clear indicator by the Judge that he should be found guilty. Further, that the Judge contravened BORA and the Magna Carta, as well as the “doctrine of Jury Nullification”, by not directing the jury to consider all of the evidence, including the appellant’s views on cannabis use and the need for legislative change, as expressed in his closing address.
[18] The first three grounds of appeal can be disposed of in short order.
[19] The appellant’s argument, whilst undoubtedly sincere, is misconceived in relation to the role of the Courts in upholding and applying the law. The directions given by the trial Judge were copy-book, in terms of principle and approach and provided the correct guidance for the jury. The trial was not concerned with a conscience decision about laws enacted by a duly elected Parliament. The verdicts returned were in accordance with the evidence, and the evidence satisfied the required standard of proof. The verdicts are not open to challenge.
[20] These three grounds of appeal fail.
[21] The fourth ground of appeal concerned the application of the words “lawfully supplied” in s 8(2)(c) Misuse of Drugs Act 1975, which provides:
Any person for whom a controlled drug is supplied by a medical practitioner or dentist, or prescribed by a medical practitioner or dentist and lawfully supplied, may administer that drug to himself in accordance with the advice of the medical practitioner or dentist who supplied or prescribed it:
[22] The point made here was that persons who have a medical endorsement for an exemption under s 8(2)(c) and are thus entitled to be prescribed cannabis preparation for medicinal purposes, do not however have access to a lawful retail outlet in New Zealand. Therefore, while a person with an exemption can obtain Sativex on prescription from a pharmacy, the raw drug cannot be obtained.[2] The appellant argued that the exemption recognised under s 8(2)(c) must therefore mean that persons who are legitimately able to be prescribed cannabis for medical purposes should be able to grow the plant for this purpose, given the absence of lawful retail suppliers. Thus, as an exempted person, he should not have been convicted of cultivation for personal use.
[23] A related argument was that, given the absence of readily available retail cannabis, a GreenCross card holder, who is exempt from prosecution under the Act, ought to be able to lawfully supply another exempted GreenCross card holder with cannabis grown for medicinal purposes. In this regard, the appellant was suggesting that, as a GreenCross card holder, he should have been able to supply the officer, if the officer were another GreenCross card holder, with cannabis.
[24] We do not accept that the text and purpose of s 8(2)(c) support either of these arguments. The text of the provision is clear. It simply permits a person who is supplied or prescribed a controlled drug to administer that drug “to himself [or herself]” in accordance with the advice received. The purpose of the provision is to create an exception to the prohibition on the supply and prescription of such drugs.[3] The exception created by the provision does not extend to permitting the cultivation of cannabis for personal use by the person to whom the controlled drug has been supplied or prescribed. Nor does it permit that person to supply the drug to any other person. For the Court to interpret the provision in any other way would be to give it an extended meaning not envisaged by the legislature.
[25] The fifth ground of appeal concerned an allegation that this was a case of entrapment by the undercover officer. In this regard the appellant pointed to the period of time that elapsed before he acceded to the officer’s numerous requests to provide him with “raw medicine”; that he had encouraged the officer to become a GreenCross card holder with a medical exemption under s 8(2)(c) Misuse of Drugs Act; and had declined to supply the officer with cannabis for recreational use. The appellant said the undercover officer had pressured him with accounts of severe headaches leading him to feel deeply sympathetic and seriously concerned about the officer’s health. The supply of small amounts of cannabis from his personal stock on four occasions and over a period of a year, at essentially half-price and only after much “wheedling” from the officer, should have been regarded as entrapment.
[26] This Court recently discussed the principles of entrapment in Stevenson v R and in doing so referred to the decision of the House of Lords in R v Looseley: Attorney-General’s Reference (No 3 of 2000).[4] In R v Looseley Lord Nicholls expressed the view that:[5]
... a useful guide is to consider whether the police did no more than present the defendant with an unexceptional opportunity to commit a crime... The yardstick for the purpose of this test is, in general, whether the police conduct preceding the commission of the offence was no more than might have been expected from others in the circumstances. Police conduct of this nature is not to be regarded as inciting or instigating crime, or luring a person into committing a crime.
[27] The same approach is required by s 30 of the Evidence Act. The focus is on the fairness and propriety of police conduct in obtaining evidence.
[28] The first difficulty with this ground of appeal is that the issue of entrapment was not raised until the appellant referred to it in his closing address to the jury. As the Judge correctly observed, entrapment is not a defence but a ground for excluding evidence, if properly made out. This ground of appeal must therefore fail on that basis alone. However we observe that the facts, at least as far as are known, would not in any event have supported a finding of entrapment, based on the relevant principles and whether there was improper conduct on the part of police.
[29] The evidence established that the investigation was commenced as a result of information police received about the GreenCross organisation, raising concern over its activities. The easy accessibility of the website and activity on it raised a legitimate cause for further inquiry and thus led to contact with the appellant through his details on the website. Whilst the facts differ, the threshold for inquiry in the appellant’s case is similar to that which pertained in Wales v R.[6]
[30] On application of Stevenson principles, it cannot be said that the undercover officer went further than creating an unexceptional opportunity for the appellant to offend. His actions did not amount to incitement to commit a crime.
[31] This ground of appeal also fails.
Appeal against sentence
[32] Turning to the issue of sentence, we are satisfied there is scope for an adjustment to be made in the appellant’s case.
[33] Although there were four separate sales, they were for relatively small amounts and on what is accepted by the Crown as a not-for-profit basis. There was an elapse of some four months before the appellant acceded to the undercover officer’s requests, and he was hesitant about supplying to a person who was not yet a fully paid up GreenCross card holder with a medical exemption under s 8(2)(c) of the Misuse of Drugs Act. We accept also that the appellant was motivated on a humanitarian basis, although that cannot excuse his actions in law.
[34] The cannabis cultivation was not a major operation although, as Judge Morris observed, it could not be dismissed as insignificant. The appellant’s overall culpability was rightly assessed as coming at the very low end of Category 2 in R v Terewi.[7]
[35] The Judge took into account that the appellant was not driven by commercial gain and was generally motivated to assist others, combined with furthering the goal of attempting to decriminalise cannabis. She noted, however, that the latter is a complex issue to be dealt with at a political level.
[36] Taking into account the low level of commerciality, set against the fact this was planned, persistent and publicised law breaking on the part of the appellant, the Judge identified a starting point of two years and five months’ imprisonment.
[37] After allowing various discounts for personal and other factors and in recognition of the appellant’s restriction to a wheel chair and the impact a term of imprisonment would have on him, the Judge considered that home detention was available. Given the appellant’s significant disability, the Judge concluded that 12 months’ home detention would be an adequate deterrent.
[38] A sentence of home detention cannot be described as wrong in principle, and anything less would have been insufficient to mark the seriousness with which such offending is regarded.
[39] However, having carefully assessed all of the features of this unusual case, we are satisfied that the sentence of home detention can appropriately be reduced to a period of six months.
Result
[40] The appeal against conviction is dismissed.
[41] The appeal against sentence is allowed. The sentence of 12 months’ home detention is quashed and a sentence of six months’ home detention substituted.
[42] The sentence of home detention is to be served at the address identified in the report prepared for the District Court by the Department of Corrections in October 2012.
[43] The standard conditions for home detention under s 80C(2) of the Sentencing Act are to apply.
[44] The sentence is to commence at 2 pm on Friday 30 August 2013.
[45] The appellant must be at the address from the time of the commencement of the sentence and remain there pending the arrival of a probation officer and an officer of the company responsible for connecting the electronic monitoring system.
Solicitors:
Crown Law Office, Wellington for Respondent
[1] R v McKee DC Palmerston North CRI-2011-031-1025, 30 October 2012.
[2] Subject to the limited exemptions in the Medicines Act 1981, which control access to medicines that have not been assessed or approved as a medicine under s 20 of the Medicines Act.
[3] Law Commission Controlling and Regulating Drugs – A Review of the Misuse of Drugs Act 1975 (NZLC R122, 2011) at [10.5], [10.14], [10.118] and [10.124]–[10.125]. We note that as a Class C1 drug, the Minister of Health’s approval is required before any prescriber can provide, or any patient can use raw cannabis: Misuse of Drugs Regulations 1977, reg 22.
[4] Stevenson v R [2012] NZCA 189, (2012) 25 CRNZ 755; R v Looseley: Attorney-General’s Reference (No 3 of 2000) [2001] UKHL 53, [2001] 1 WLR 2060.
[5] At [23].
[6] Wales v R [2013] NZCA 233 at [29].
[7] R v Terewi [1999] 3 NZLR 62 (CA).
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