Alexander v R [2013] NZCA 416 (4 September 2013)

Last Updated: 11 September 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA730/2012 [2013] NZCA 416
BETWEEN	JOHN BORRIE ALEXANDER Appellant
AND	THE QUEEN Respondent

Hearing:	20 August 2013
Court:	French, Rodney Hansen and Mallon JJ
Counsel:	A J D Bamford for Appellant J E Mildenhall for Respondent
Judgment:	4 September 2013 at 12.00 pm

JUDGMENT OF THE COURT

A The appeal against conviction is allowed.

2. The conviction and sentence on count one are quashed. There is no order for a retrial. The conviction and sentence on count two are confirmed.

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REASONS OF THE COURT

(Given by Rodney Hansen J)

[1] After trial before Judge Saunders and a jury in the Greymouth District Court, the appellant was convicted on two counts of cultivating cannabis. He was acquitted on a count of possession of cannabis for the purpose of supply. He was sentenced to imprisonment for two years and two months.^[1]
[2] Mr Alexander appeals against his conviction on one of the counts of cultivating cannabis, count one, and also against his sentence. He says the sentence was manifestly excessive in the absence of a commercial element to the cultivation.

The evidence

[3] On 8 April 2011, Mr Alexander was stopped by police while driving in Greymouth. The police had noticed that one of the headlights on his car was not working. One of the two officers present smelt cannabis. A search of the vehicle was conducted under the Misuse of Drugs Act 1975. Three large rubbish bags containing 4.7 kilograms of freshly cut cannabis were found in the back of the car. The police officers said Mr Alexander told them that he had “just harvested his plot” or words to that effect.
[4] The police officers obtained a search warrant and later that evening searched Mr Alexander’s house at Hokitika. They found that a wardrobe in one of the bedrooms had been set up for the cultivation of cannabis using heat lamps and timers. There were 15 cannabis seedlings growing in pots in the wardrobe. Elsewhere in the house the police found dried cannabis material, 160 grams of cannabis head and 349 grams of cannabis leaf. A plastic bag containing $740 in cash was seized.
[5] Mr Alexander represented himself at the hearing and gave evidence in his own defence. He frankly acknowledged that he was a long-time heavy consumer of cannabis. He claimed that the cannabis found in his possession was for his personal use.
[6] Mr Alexander said that on the day he was apprehended, he was kayaking on the Inangahua River when he came upon three mature cannabis plants growing in the bush on the riverbank. He saw the opportunity to obtain enough cannabis for his needs for the next year and, after returning to his car for a cutting tool and bags, harvested the useable plant material. He said that when apprehended, he told the police officers that he had “found the pot and picked it”.
[7] Mr Alexander told the Court that the plants growing in his wardrobe were cuttings he had taken from a plant that had been given to him by a friend sometime earlier. He said that after taking the cuttings, he had planted the remainder of the plant in the bush and, when it matured, harvested and dried the material. This produced the cannabis head and leaf found in the course of the police search of his house. He explained how he had obtained the cash that was found, producing bank statements to back up his evidence.
[8] Questioned by the Judge, Mr Alexander acknowledged that he was admitting to cultivating the cannabis plant in the bush at Hokitika and also the 15 plants that were found in his house. He said he pleaded not guilty to count two, which covered the cultivation at his home, because “even though I’m admitting to cultivating cannabis, I’m going to ask [the jury] to overlook that in favour of viewing the police officer’s conduct”.

Summing up

[9] In summing up to the jury, Judge Saunders commented on Mr Alexander’s admission that he had the cultivated cannabis plant in the bush at Hokitika. He said that count one “effectively relates” to what was found in Mr Alexander’s car but went on to say:

[6] You might well find that on that evidence the legal elements of count 1 have also been established. What I indicated to the Crown and to Mr Alexander at the end of the evidence was that it was open for you to return a verdict of guilty in respect of count 1 on Mr Alexander’s admission in Court today that he had cultivated a plant out there in Hokitika and that he had harvested that and brought it back into his bedroom in Hokitika. That, however, does not help me in relation to liability or culpability around sentencing issues and for that reason I said I would pose a question to you which the Judge can do on occasions - it is rare, but this is one of those unusual cases and the question that I am asking you to consider is, are we satisfied that the 4.7 kilograms of cannabis material seized on 8 April 2011 had been cultivated by Mr Alexander. If you are sure that he did take some active steps to tend to that plant material that had been harvested and was in the back of his car then the answer would be yes. If you are not sure about the position now having heard his evidence on that as to how he says he came across it and you think that what he says might well be true, you are simply not sure beyond reasonable doubt, then you would answer the question as no. That assists me, then in relation to issues of what we call culpability or the appropriateness around sentencing.

[7] So while on his evidence count 1 has been made out through what he said he did in planting out a plant which he harvested that does not get to the heart of the matter and that is why I am posing the question, are we satisfied, in other words sure, that the plant material in the car that was seized was material that he had taken some active step to harvest and that is really the nub of that first count. At the end of the day the issue about whether it was cannabis or whether he knew it was cannabis do not appear to be an issue at all. He says he knows what cannabis is. He smoked it for 30 years or whatever it is. He is familiar with it and so those issues are not necessarily matters that the Crown need to be concerned about in terms of proving for counts 1 and 2.

After discussing count three and aspects of the evidence, the Judge reprised his earlier direction:

[22] So, in summary, members of the jury, the question of cultivation - legally somebody who takes an active step to tend to a plant to make it grow whether it be by watering it, fertilising it, applying artificial light to it to help it grow are all steps actively towards making the plant grow. There does not appear to be any doubt that Mr Alexander knew what was growing in his room at Hokitika and that he knew that the substance was cannabis. The question that I have said I would pose for you, and I have effectively written it out, is are we satisfied that the 4.7 kilograms of cannabis material seized on 8 April 2011 had been cultivated by Mr Alexander? If you are sure he did take some active step to tend those plants then the answer would be yes. We are talking about 4.7 kilograms of plant material. If you are not sure about the position as to his cultivation of that material and think what he says may well be correct, that he stumbled across it while out paddling on 8 April and then simply picking it then your answer will be no. He has, as I have said, admitted a cultivation of plant at Hokitika so it fits within the legal definition but I want a special verdict on that particular count.

[10] The Judge distributed written directions to the jury in which he summarised the legal elements of the charges of cultivation of cannabis and possession of cannabis for the purpose of supply and provided directions in relation to count one which read as follows:

Directions to the Jury

● Are we satisfied that the [4.7]kg of Cannabis material seized on the 8^th of April 2011 had been cultivated by Mr Alexander?

● If you are sure that he did take some active steps to tend these plants then the answer will be “yes”.

● If you are not sure about the position as to Mr Alexander’s cultivation of the material and think what he says may be correct about stumbling on it while out on 8^th of April 2011 and picking it then your answer will be “no”.

Conviction appeal

[11] In advancing the appeal against the conviction on count one, Mr Bamford focused on the way in which the Judge dealt with Mr Alexander’s admitted cultivation of the single cannabis plant in the Hokitika bush. His initial position was that the evidence should have been the subject of a direction which explained how the jury could use it as propensity evidence. In the course of argument, he modified his position to contend that the jury should have been given a conventional warning not to use the evidence of admitted cultivation of one plant in the bush in determining whether Mr Alexander had also cultivated the plants harvested on the day he was stopped.
[12] Ms Mildenhall acknowledged that the cultivation of the single plant was separate offending. She said that “technically” it could have founded a conviction on count one but, when pressed by the Court, conceded that because of the way the Crown ran its case at trial, a conviction on that basis alone could not have been sustained. However, she argued that the ultimate verdict on count one was safe as the jury was directed to confine itself to the question of whether the cannabis found in the car had been cultivated. Ms Mildenhall maintained that there was no risk that the jury might have been improperly influenced by Mr Alexander’s admitted cultivation on the earlier occasion.
[13] We do not share Ms Mildenhall’s confidence that the jury would not have placed undue weight on the earlier admitted offending. They were told that it was open to them to return a verdict of guilty in respect of count one on the basis of Mr Alexander’s admission that he had cultivated a plant in the bush. This was an error as, from the outset, the Crown had put its case on the basis that count one related to the cannabis in the car. There was clearly potential for prejudice if the basis for the Crown case changed after the evidence was completed. However, the operative error was in failing to explain to the jury how Mr Alexander’s admission that he had cultivated cannabis in the bush on an earlier occasion could be used when considering whether he had cultivated the cannabis found in his car. The jury should have been directed that, while they could consider the evidence for the purpose of assessing Mr Alexander’s explanation for the presence of cannabis in his car, they must guard against concluding that because he had admitted cultivating cannabis outdoors on the earlier occasion, he must have done so again.
[14] In our view, such a direction was essential having regard, in particular, to Mr Alexander’s unequivocal admission of wrongdoing and the Judge’s direction that the earlier offending in itself would have supported a conviction on count one. While the jury was in form being asked to return a verdict on count one, it was in substance being asked to provide assistance to the Judge for the purpose of sentencing for offending which included the cultivation of the plant in the bush. We are satisfied that, in the absence of such a direction, the jury’s verdict on count one is unsafe and must be set aside.

Appeal against sentence

[15] Consistently with his direction to the jury and its verdict on count one, Judge Saunders proceeded to sentence Mr Alexander on the basis that he had cultivated the cannabis found in his car. He said the quality of the plant material would never be known, though it would likely have reduced to 1.1 kilograms when dried.
[16] The Crown accepted that the offending came within category one of R v Terewi, which covers the cultivation of a number of plants for personal use.^[2] The Judge, accepting that Mr Alexander was a heavy user of cannabis, appears to have proceeded on the basis that there was no evidence of commercial purpose. He adopted a starting point of 20 months’ imprisonment for the count one offending, with a concurrent sentence of nine months for the small-scale cultivation at Mr Alexander’s home. He uplifted the sentence by six months to take account of Mr Alexander’s prior drug offending. Mr Alexander had convictions going back 30 years, most of them for relatively minor offending though, in 2007, he had been sentenced to two years and six months’ imprisonment for a range of drug-related offences, including possession of cannabis for supply.
[17] Mr Bamford argued that the starting point of 20 months was too high – he said it should have been 12 months or less – and the sentence overall was manifestly excessive. However, with Mr Alexander’s conviction on count one now set aside, the issue we must consider is the sentence which should be substituted for the conviction on count two alone.
[18] For this purpose, we do not confine ourselves to the cultivation of the 15 plants. As counsel acknowledged, the success of the conviction appeal and Mr Alexander’s acquittal on count three does not mean that the cannabis found in Mr Alexander’s possession should be disregarded for sentencing purposes. While it is elementary that an offender may be sentenced only for offences of which he or she has been convicted, the court may have regard to surrounding circumstances which are directly related to the offending and may properly be taken into account as aggravating or mitigating factors.^[3] In the context of cannabis offending, this permits evidence of the possession of harvested cannabis to be taken into account as evidence of aggravation on a charge of cultivation.^[4]
[19] Mr Alexander’s admitted possession of the cannabis found in his car and at his home is a circumstance that can properly be taken into account, albeit on the basis that, as required by his acquittal on count three and his successful appeal on count one, there is no element of commerciality and the cannabis in his car was acquired adventitiously.
[20] The composite picture thus presented requires us to sentence Mr Alexander on the basis of the cultivation of a small number of seedlings and immature plants and the associated possession of harvested cannabis material, the quality of much of it unknown, for non-commercial purposes. In our view, his culpability is appropriately reflected in the nine month sentence the Judge imposed on count two. In the absence of a commercial element, we do not think any uplift to reflect Mr Alexander’s previous drug-related convictions is warranted. His offending on this occasion is fully explained by his chronic cannabis dependency.
[21] Mr Alexander has been in custody since October 2012. He has accordingly completed his sentence. No further adjustment is required.

Result

[22] The appeal against conviction is allowed. The conviction and sentence on count one are quashed. In the circumstances, it is not appropriate to order a retrial. The conviction and sentence on count two are confirmed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Alexander DC Greymouth CRI-2011-018-391, 19 October 2012.

^[2] R v Terewi [1999] 3 NZLR 62 (CA).

^[3] Lane v Auckland City Council [1975] 1 NZLR 353 (CA) at 355. Also see Geoffrey Hall Hall’s Sentencing (online looseleaf ed, LexisNexis) at [APPI.3.5(b)].

^[4] R v Pattison [2002] NZCA 152; (2002) 19 CRNZ 407 (CA); R v Reed [1991] 1 NZLR 190 (CA) at 192.