Menzies v R [2014] NZCA 181 (14 May 2014)

Last Updated: 22 May 2014

IN THE COURT OF APPEAL OF NEW ZEALAND
CA664/2013 [2014] NZCA 181
BETWEEN	MURRAY ALEXANDER MENZIES Appellant
AND	THE QUEEN Respondent

Hearing:	5 May 2014
Court:	O’Regan P, Miller and Courtney JJ
Counsel:	Appellant in person K Laurenson for Respondent
Judgment:	14 May 2014 at 2.15 pm

JUDGMENT OF THE COURT

1. The application for an extension of time to appeal is granted.

2. The appeal against conviction is dismissed.

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REASONS OF THE COURT

(Given by O’Regan P)

Introduction

[1] The appellant pleaded guilty to two counts of cultivating cannabis. Just before the trial was to commence, the appellant was discharged under s 347 of the Crimes Act 1961 on a further charge of possession of cannabis for the purpose of supply. The appellant then pleaded guilty to the two cultivation charges.
[2] Following his conviction, a disputed facts hearing was convened. This was held before Judge Crosbie on 11 April 2013. The Crown argued that the cultivation of cannabis had a commercial element to it, and sought to prove this at the disputed facts hearing. This was significant because commercial cultivation attracts a higher sentence than cultivation for personal use. Under s 24(2)(c) of the Sentencing Act 2002, the Crown had the onus of proving this beyond reasonable doubt. The Judge concluded that the cannabis growing operation found by the police when searching the appellant’s premises was “substantial and successful demonstrating both harvesting and crop-rotation”.^[1] He concluded that the appellant was responsible for growing a substantial amount of cannabis that exceeded the amount required for his own use and was intended for supply and/or sale. He therefore sentenced the appellant on the basis of category 2 in R v Terewi.^[2]
[3] The Judge sentenced the appellant to a term of imprisonment of two years.^[3]
[4] The appellant appealed against both conviction and sentence. He abandoned the sentence appeal shortly before the hearing, having completed his term of imprisonment. The appeal was filed out of time. As there is no prejudice to the Crown and the appellant is unrepresented, we grant an extension of time in which to appeal.

Ground of appeal

[5] The appellant’s appeal is advanced on the proposition that his conviction is founded on a “presumption of guilt” inherent in the Misuse of Drugs Act 1975. He says this is unlawful because it contravenes art 14 of the International Covenant on Civil and Political Rights (ICCPR).^[4] This appears to be a reference to s 6(6) of the Misuse of Drugs Act, which provides that if a person is in possession of more than certain defined quantities of particular controlled drugs, that person is presumed to be in possession of the drugs for the purpose of supply “until the contrary is proved”. This reverse onus provision was the subject of the Supreme Court’s decision in Hansen v R.^[5]
[6] The appellant argues that the finding of the sentencing Judge that he cultivated cannabis for commercial purposes depended on this reverse onus, and that the statutory provision providing for the reverse onus should not be given effect to because of its inconsistency with international human rights norms.

Presumption not applicable

[7] The problem for the appellant is that s 6(6) of the Misuse of Drugs Act did not apply in his case. As mentioned earlier, the charge of possession of cannabis for supply was not proceeded with and the convictions entered against the appellant were for cultivation only. The appellant pleaded guilty to those counts. The disputed facts hearing that was held under the Sentencing Act did not involve any reverse onus: to the contrary, the Crown was required under s 24 of the Sentencing Act to prove beyond reasonable doubt that the appellant’s cultivation of cannabis had a commercial element to it.

Disputed facts hearing: commercial element

[8] The appellant argues that Judge Crosbie could not have found the commercial element to the cultivation without the reverse onus. However, it is clear that the Judge did just that, based on the evidence before him from three police witnesses and from Mr Menzies himself.
[9] In his reasons for judgment, Judge Crosbie summarised this evidence.^[6] Having reviewed that evidence we are satisfied that it was well open to the Judge to conclude that the cultivation was commercial in character.
[10] Mr Menzies is a regular user of cannabis. In evidence in the District Court he said he used up to half an ounce a week or 26 ounces a year. He has made the legalisation of cannabis something of a crusade, and has been involved in a number of court proceedings both before this Court and the Supreme Court.^[7] Despite this substantial personal consumption, the quantities of cannabis found and the other indications of commerciality pointed overwhelmingly to the conclusion of a commercial element to the cultivation. The appellant’s explanation that he was stockpiling cannabis for experimentation with the production of cannabis-based beer did not have the ring of truth. We can see no error in the Judge’s approach to the disputed facts hearing and consider the conclusion he reached was inevitable.

Sentence

[11] Having concluded that the cultivation was commercial in character, the Judge’s approach to sentencing was orthodox. He placed the offending within category 2 of R v Terewi, and adopted a starting point of 20 months, which was generous in the circumstances. He applied a six month uplift for the appellant’s numerous previous convictions, and a two month discount for the late guilty plea, leading to the sentence of two years’ imprisonment.

Conviction appeal

[12] Mr Menzies’ conviction appeal is based on his contention that he should have been allowed to withdraw his guilty pleas before sentencing took place. However, there is nothing to indicate any reason for that. Mr Menzies’ desire to do so appears to have resulted from his mistaken impression that the reverse onus provision of the Misuse of Drugs Act applied. That was not, in fact, the case. We add that since his commercial purpose was subsequently proved beyond reasonable doubt, no question of a miscarriage of justice could arise.

Result

[13] In those circumstances the appeal against conviction is dismissed.

Solicitors:
Crown Law Office, Wellington for Respondent

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^[1] R v Menzies DC Dunedin CRI-2013-012-642, 27 June 2013 (judgment on disputed facts) at [32]. The CRI number noted on the judgment appears to be incorrect: the correct number is CRI-2012-012-3694.

^[2] R v Terewi [1999] 3 NZLR 62 (CA). That judgment provides for categories of offending in ascending order of seriousness: category 1, cultivation for personal use; category 2, cultivation for small scale commercial purposes; and category 3, cultivation for a large scale commercial operation.

^[3] R v Menzies DC Dunedin CRI-2012-012-3694, 20 May 2013 (sentencing notes)

^[4] International Covenant on Civil and Political Rights 999 UNTS 171 (opened for signature 16 December 1966, entered into force 23 March 1976).

^[5] Hansen v R [2007] NZSC 7, [2007] 3 NZLR 1.

^[6] Judgment on disputed facts, above n 1.

^[7] See for example Menzies v R [2006] NZSC 100; R v Menzies CA144/06, 13 September 2006; R v Menzies CA284/96, 26 September 1996; and R v Menzies CA373/94, 17 November 1994.