Taylor v R [2013] NZCA 417 (4 September 2013)

Last Updated: 11 September 2013

IN THE COURT OF APPEAL OF NEW ZEALAND
CA431/2013 [2013] NZCA 417
BETWEEN	PAUL FREDERICK TAYLOR Appellant
AND	THE QUEEN Respondent
CA450/2013
AND BETWEEN	RICHARD GRAYSON Appellant
AND	THE QUEEN Respondent

Hearing:	22 August 2013
Court:	White, Venning and Courtney JJ
Counsel:	W T Nabney for Appellants J M Jelas for Respondent
Judgment:	4 September 2013 at 4.00 pm

JUDGMENT OF THE COURT

The appeals against sentence are dismissed.
____________________________________________________________________

REASONS OF THE COURT

(Given by White J)

Introduction

[1] Messrs Taylor and Grayson appeal their respective sentences of seven years’ imprisonment on one charge of cultivating cannabis and one charge of aggravated assault, imposed on them by Judge McGuire in the District Court at Rotorua.^[1]
[2] Messrs Taylor and Grayson pleaded guilty to both charges, but took issue with the quantity and value of the cannabis they admitted cultivating. This led to a disputed facts hearing under s 24 of the Sentencing Act 2002 and a ruling by Judge McGuire which provided the basis for this aspect of his subsequent sentencing.^[2]

Background

[3] The cannabis cultivation operation was found by the police in two purposebuilt wire netting enclosures in a pine plantation. There were 9,624 cannabis seedlings discovered inside the enclosures growing in grow bags and potting mix. A manmade pond, plastic bins and plastic bags were also found, together with a collection of tools and gardening equipment in Messrs Taylor and Grayson’s motor vehicle.
[4] A search warrant executed on Mr Taylor’s home revealed a number of empty fertiliser bags as well as a bag containing dried cannabis material and a number of cannabis seeds. At Mr Grayson’s home police located 27 grams of dried cannabis head and a large plastic bag carrying three smaller bags of cannabis weighing a total of 669 grams and containing low grade cannabis leaf material and seeds.
[5] The aggravated assault charge was laid because a police officer involved in the apprehension of Messrs Taylor and Grayson was injured. There was an initial struggle with Mr Taylor. Mr Taylor then encouraged Mr Grayson to “have a go”. A joint attack then followed and the officer was knocked to the ground, pushed and punched. As a result of this attack, Messrs Taylor and Grayson were able to escape, at least for a time, and during their subsequent recapture the officer sustained further injuries.
[6] The officer sustained various injuries to his knee, right index finger, the back of his head, right eye, chin, elbows, lower back area and legs. As a result of the injuries, the officer required seven weeks off work and, as noted in his victim impact statement 18 months later, both his injured knee and index finger continued to cause him pain. Specialist advice was that the latter injury would remain a “permanent disability”.

Disputed facts hearing

[7] At the disputed facts hearing, Judge McGuire heard evidence from police expert Detective Sergeant Kingsbury, Sergeant Garnett (one of the arresting officers) and Mr Taylor. The Judge was also provided with internationally published research material from the Institute of Environment Science and Research Ltd relating to the results of experimental indoor hydroponic cannabis growing.
[8] In his ruling the Judge noted: the previous convictions of both Messrs Taylor and Grayson for cannabis related offending; Mr Taylor’s acknowledgment of having grown cannabis outdoors before; and the expert evidence of Detective Sergeant Kingsbury, whose qualifications were not challenged. After accepting the expert evidence as to the growing season and rejecting Mr Taylor’s evidence on this issue, Judge McGuire concluded:

[20] Two plantings of healthy plants were involved here. Two predator proof cages had been constructed and all the plants appeared to be in healthy condition. The accused knew what they were doing. They had done it before. As the police expert Detective Sergeant Kingsbury says, outdoor plantings tend to be in small relatively discreet lots and it is the practice of cannabis growers not to have all of their crop yield in one location. So while, as the Detective Sergeant acknowledges the most cannabis head he has seen in one place has been 12 pounds, I find that the accused had both the intention and the expertise to grow a much larger crop and what the police found in the two enclosures proved that they were in the process of turning that intention into reality. Broadly speaking, there are two crops growing in the enclosures, as shown in photographs 8 and 9. Had they not proceeded to plant the second crop, they still would have had a huge number of plants, plainly numbering in the thousands. Yet they went on to at least treble that amount with the second crop. Again, see photographs 8 and 9. The conclusion therefore that they deliberately set out to grow thousands of cannabis plants is inescapable. It follows from the quality of the husbandry, they intended these plants to grow to maturity.

[21] I find that the calculations made by the Detective Sergeant are fair ones. First, he halves the number of plants to take account that potentially half of them will be male plants. Next he halves the amount again to take account of other losses of plants between the time they were found and their maturity. I regard that deduction as a fair one for these reasons:

(a) The accused are experienced growers of cannabis in the outdoors. What the police found in the wire netting cages and elsewhere further bears this out.

(b) The Detective Sergeant’s calculation takes account of any further culling of excess plants that Mr Taylor says they were intending to carry out. Although I have substantial misgivings that a conscientious cannabis grower would cull a plant potentially worth at least $3000, rather than replant [it] in a separate planter bag, or indeed leave it in the same planter bags and untangle its roots from its neighbour(s) at plant out time.

(c) As experienced growers, the accused plainly were aware of the fact that their crop yield could be affected by animal predators and they were taking measures to ensure that that was minimised.

[22] So I find that for the purpose of sentencing, the Court will be concerned with approximately 2400 cannabis plants yielding conservatively 2400 pounds of cannabis valued at just over $7 million using the conservative value of $3000 per pound. While the value calculations that derive from a number of plants are enormous, the evidence in this case does not allow me to conclude otherwise.

Sentencing

[9] As envisaged by s 24 of the Sentencing Act, Judge McGuire proceeded to sentence Messrs Taylor and Grayson on the basis of the conclusion he had reached at the disputed facts hearing. He referred again to their previous convictions, including in particular their convictions for cultivating cannabis together in 1994 which had involved some 2,000 plants cultivated on a kiwifruit farm. The Judge referred to the arresting officer’s injuries and victim impact statement as well as the pre-sentence reports for Messrs Taylor and Grayson.
[10] With reference to the tariff decision in R v Terewi,^[3] the Judge emphasised the principle of deterrence and indicated that the offending fell within Category 3, being four to seven years’ imprisonment.^[4] He concluded that while the operation was not sophisticated it was organised and involved healthy plants. The Judge then set the starting point at six and a half years with reference to both R v Daley^[5] and R v Jeffries^[6] and “in particular, because of the scale of the offending and the fact of your previous conviction[s]”.^[7]
[11] In relation to Mr Grayson, the Judge reiterated that the starting point was six and a half years and that there would be a discrete uplift for the previous convictions.^[8] The Judge referred to Mr Grayson’s greater number of previous convictions, but concluded that parity warranted no more than six months’ uplift for them both.
[12] The Judge then assessed the appropriate uplift for the aggravated assault conviction as two years, six months. He noted that:^[9]

This [was] a lone officer in a remote part of the country trying to apprehend two serious criminals. He chose not to deploy his weapon. He is to be commended for that. The thanks he got for that was a permanent injury.

[13] Allowing a 25 per cent discount for the guilty pleas, the end sentence for both Messrs Taylor and Grayson was fixed at seven years’ imprisonment.

Grounds of appeal

[14] Messrs Taylor and Grayson challenge their sentences on the following grounds:

• (a) the Judge was wrong in fact in respect of the possible yield and subsequent value of the cannabis seedlings located by the police which resulted in the starting point being set too high;
• (b) the Court took into account the previous convictions of Messrs Taylor and Grayson when fixing the appropriate starting point and then included a further uplift for the same factor; and
• (c) the uplift identified for the offence of aggravated assault was too high.

Starting point

[15] For Messrs Taylor and Grayson, Mr Nabney submitted that the Judge ought not to have sentenced on the basis that the cannabis cultivation involved an estimated 2,400 plants yielding a value of $3,000 per plant (at a conservative yield estimate of one pound per plant) as this was “mere speculation” and not an objective basis on which to sentence. Mr Nabney relied on the decisions in R v Prest^[10] and R v Young^[11] to support a starting point of four years’ imprisonment, being the lower end of Category 3 in R v Terewi.^[12] Mr Nabney submitted that the decision in R v Jeffries^[13] should be distinguished.
[16] The difficulty with these submissions is that they constitute a challenge to the findings made by Judge McGuire following the disputed facts hearing. While we accept that it was open to Messrs Taylor and Grayson to appeal against those findings on appropriate grounds, in this case they have in fact advanced no grounds for doing so. On the contrary, in the course of argument before us, Mr Nabney quite properly accepted that:

• (a) as there had been no challenge to the expertise of Detective Sergeant Kingsbury, there was evidence before the Judge to support the conclusions in his ruling at [20];
• (b) the findings reached by the Judge at [21] were, as the Judge said, “fair ones”; and
• (c) the Judge’s acceptance at [21(b)] of the Detective Sergeant’s calculation, which took into account further culling of excess plants that Mr Taylor said they were intending to carry out, was a benevolent view of the evidence favourable to Messrs Taylor and Grayson.

[17] Once it is accepted that these findings in the Judge’s ruling were properly made on the evidence before him, there is no basis for challenging his conclusion that for the purpose of sentencing the Court would be concerned with approximately 2,400 cannabis plants yielding conservatively 2,400 pounds of cannabis valued at just over $7 million using the conservative value of $3,000 per pound.
[18] The Judge’s decision to sentence on this basis led inevitably to the upper end of Category 3 in R v Terewi. We agree with the Crown that in view of the scale of offending in this case a starting point close to the maximum available penalty of seven years was an appropriate application of s 8(c) of the Sentencing Act. As the Judge noted, this was an organised, large scale operation. With purposebuilt enclosures designed to let in light and keep out predators, together with a man-made pond for water supply, it was a sophisticated enterprise. As this Court said in R v Daley,^[14] “the maximum penalty is not to be reserved for the worst imaginable case, rather the issue is whether the case falls within the broad band of most serious cases”. This was such a case and the starting point of six and a half years was justified.

Uplift for previous conviction

[19] We agree with Mr Nabney that the Judge’s sentencing notes do appear to contain an inconsistency in respect of the six month uplift for previous convictions. The Judge starts by stating in relation to the starting point for both Messrs Taylor and Grayson:

[49] ... The starting point that I therefore take, for today’s purposes ... and in particular, because of the scale of the offending and the fact of your previous conviction[s], is one of six and a half years imprisonment.

[20] Then, when dealing specifically with Mr Taylor, the Judge states:

[50] ... So the starting point I take is six and a half years. There will be an uplift for your previous convictions.

[21] And, when dealing specifically with Mr Grayson, the Judge states:

[51] ... You were both in the previous offending in 1994 together. For practical purposes, I conclude there is no difference between you for today’s purposes. There will be an uplift of six months for that. That gives a starting point for the cannabis of seven years.

[22] We agree with the Crown, however, that the Judge’s first reference to the starting point of six and a half years as including the six months uplift for the previous conviction appears to have been inadvertent and was corrected by the subsequent references to a starting point of six and a half years with an uplift of six months for the previous convictions to reach the seven year figure.
[23] Having already concluded that the starting point of six and a half years was appropriate, and Mr Nabney having accepted that the six month uplift for the previous conviction was also appropriate, we see no reason to differ from the Judge’s decision on this issue.

Uplift for aggravated assault

[24] We do not agree with Mr Nabney that the uplift of two and a half years imposed for the aggravated assault was too high. We agree with the Crown that the nature of the aggravated assault in this case, committed while attempting to evade arrest, cannot be equated to that which occurred in R v Mahanga^[15] and that, while the uplift was close to the maximum penalty of three years’ imprisonment,^[16] the offending here was sufficiently serious to warrant a starting point close to that level and was justified by s 8(c) of the Sentencing Act.

Totality

[25] We are also satisfied that when the totality of the offending is considered as required by s 85 of the Sentencing Act, the final sentence imposed of seven years’ imprisonment was entirely appropriate and correctly reflected the totality of the offending independently of the manner in which the sentence was constituted.
[26] In reaching this conclusion we take into account:

• (a) the serious nature of the offending on both charges;
• (b) the need for parity in sentencing Mr Taylor and Mr Grayson reflecting Mr Taylor’s greater involvement in the aggravated assault and Mr Grayson’s worse record; and
• (c) the generous discount of 25 per cent for their guilty pleas, notwithstanding the need for the disputed facts hearing and the fact that their pleas on the charge of aggravated assault were not entered until some three days before the trial on that charge was due to begin.

[27] Taken as a whole, we consider that the end sentences of seven years’ imprisonment were well within range and were not manifestly excessive.

Result

[28] The appeals against sentence are dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Grayson DC Rotorua CRI-2011-077-1544, 14 June 2013.

^[2] R v Grayson DC Rotorua CRI-2011-077-1544, 19 March 2013 (Ruling 1).

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

^[4] Section 9(2) of the Misuse of Drugs Act 1975 provides for a statutory maximum of seven years’ imprisonment for this type of offending.

^[5] R v Daley [1999] NZCA 297; (1999) 17 CRNZ 388 (CA).

^[6] R v Jeffries [1992] 1 NZLR 134 (CA).

^[7] R v Grayson, above n 1, at [49].

^[8] Ibid at [51].

^[9] Ibid.

^[10] R v Prest HC Auckland CRI-2008-004-28639, 27 May 2010 at [28] and [31].

^[11] R v Young HC Whangarei CRI-2008-029-555, 4 February 2009 at [3] and [11].

^[12] R v Terewi, above n 3.

^[13] R v Jeffries, above n 6.

^[14] R v Daley, above n 5, at [19].

^[15] R v Mahanga HC Whangarei CRI-2011-088-2950, 12 December 2011.

^[16] Crimes Act 1961, s 192(1).