R v Brammall [2012] NZHC 92 (29 February 2012)

Last Updated: 1 April 2012

IN THE HIGH COURT OF NEW ZEALAND WHANGAREI REGISTRY

CRI-2010-027-002661 [2012] NZHC 92

THE QUEEN

v

RAOUL BRAMMALL

Hearing: 7 February 2012

Counsel: N J Dore and D B Stevens for the Crown

R M Mansfield for the Accused

Judgment: 29 February 2012

JUDGMENT OF WOOLFORD J [as to disputed facts]

This judgment was delivered by me on Wednesday, 29 February 2012 at 4:00 pm pursuant to r 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Solicitors: Crown Solicitors, Whangarei.

R M Mansfield, Auckland

R V BRAMMALL HC WHA CRI-2010-027-002661 [29 February 2012]

Introduction

[1] On 21 April 2011, Mr Brammall pleaded guilty in the Kaikohe District Court to three informations, which had been laid indictably:

Cultivation of cannabis; Selling cannabis;

_{Unlawful possession of a firearm.}

[2] On 20 September 2011, the District Court declined jurisdiction to sentence Mr Brammall for these offences and remanded him on bail for sentencing in the High Court at Whangarei.

[3] Mr Brammall disputes a number of facts relied upon by the Crown for the sentencing, in particular, the yield of cannabis from the plants found and the value of that yield. A disputed facts hearing was held on 7 February 2012 to determine the facts at issue.

[4] Mr Brammall filed a lengthy affidavit outlining the history of his growing operation and a further comprehensive affidavit from a Christopher William Fowlie, an independent expert on cannabis as to its growth, yield and value. The Crown relied on briefs of evidence from Detective Senior Sergeant Johnston, Constable Wihongi and Detective Constable Wakelin. I heard oral evidence from Mr Brammall, Mr Fowlie and Detective Senior Sergeant Johnston.

Factual background

[5] I set out first the facts that are uncontested.

[6] Mr Brammall owns a 10 hectare property on Matawherohia Road, Kaeo. His house and several outbuildings are situated on the brow of a hill. Surrounding the buildings are a number of gullies which are clad in thick native bush. As a result of

information received, police executed a search warrant at Mr Brammall’s address on

22 December 2010. When police searched the kitchen of the house they located an ounce size zip lock plastic bag containing about 20 grams of cannabis head. A search underneath a caravan in Mr Brammall’s backyard located a small backpack. Contained within was a plastic zip lock bag containing $410 cash. Written on the bag was the word ‘Skunk’.

[7] After discussions with the police, Mr Brammall led them down to the back of his property to an 8 metre by 4 metre plywood shed, which was concealed in thick native bush. It was unable to be spotted from the air. Contained in the plywood shed was a large number of cannabis plants in various stages of growth.

[8] The shed was doubled lined and insulated. It was separated into two rooms with each room having a number of concealed air intake and outflows constructed. Mr Brammall had run a water line down to the building and plumbed it inside to a tap to enable a regular supply of water to the cannabis plants. He had also connected a power cable from his house, which was buried under 400 metres of ground and bush to supply power to the growing operation. Mr Brammall had lined the walls with reflective foil and then installed several banks of high pressure sodium lights, which were set to electronic timers.

[9] Mr Brammall had also installed three large extractor fans with concealed ducting, and built a number of shelves and units within the shed to house the numerous power ballasts and light shades. The shed was painted a dark green colour and covered in ferns and other foliage to help conceal it from the police. Mr Brammall operated three separate growing areas within the building – a cloning area, a vegetative growth area and a flowering area. This would enable Mr Brammall to produce a continuous supply of high quality cannabis head throughout the year rather than relying on natural growth cycles.

[10] Mr Brammall explained the growing process to the police and pointed various items out to them. He had recently harvested 9 mature plants and was in the process of drying them above one of lamp shades within the building. These were

later dried by the police. They yielded, on average, 54.5 grams of cannabis head per plant.

[11] Within a box on top of the same lamp shade, police located dried and trimmed cannabis bud ready for consumption and/or sale. This weighed a total of

328 grams.

[12] Mr Brammall had a total of 183 cannabis plants growing in the shed, spread between the cloning stage, vegetative growth stage and the flowering stage. He had

55 mature cannabis plants at the flowering stage in the larger of the two rooms. These were growing under five separate 600 watt lamps. Mr Brammall admitted to growing cannabis and selling it. He estimated however that he would only sell $200 of cannabis per week, mainly to friends and acquaintances. Mr Brammall said that the proceeds were normally spent on living expenses.

Disputed facts

[13] The disputed facts in the caption summary are as follows:

(a) “He has gone to considerable expense and effort to construct a purpose built 8 metre by 4 metre plywood shed, solely for the purpose of growing cannabis for the purpose of sale”.

(b) “Police estimate that the construction wiring and plumbing of the building would cost in excess of $30,000 and the cannabis growing equipment would cost another $10,000”.

(c) “Within a box on top of the same lampshade police located dried and trimmed cannabis bud for sale. This weighed a total of 328 grams. If sold as ounces this box of cannabis head material would have a street value of approximately $3,500”.

(d) “If the defendant were to harvest 55 plants every 6 week cycle, he would yield approximately 3 kilograms of saleable cannabis head. If sold as ounces this would have a street value of approximately

$31,500.

It would have possible for the defendant to complete 8 growing cycles during his year of operation.

This would mean the defendant had a potential cannabis income of

$252,000 for his year long growing operation”.

Discussion

[14] The first two disputed facts relate to the costs and purpose of construction of the plywood shed and the expense required to set up the cannabis growing operation.

[15] Mr Brammall is a builder with his own GST registered construction business. He states that the materials he used for the shed were obtained relatively cheaply. Some of the material, such as the roof, he says was obtained without cost. He says the roof, for example, was built from roofing iron discarded from a roof replacement job that he was working on at the time. The photographs of the shed support his evidence.

[16] He has also produced as an exhibit an invoice from Carters dated 19

September 2011, which he says relates to the framing, timber, plywood and insulation required for the shed. This invoice is in the sum of $4,109.42 inclusive of GST. Mr Brammall has also produced as an exhibit a quote from a third-party construction company to build the shed, (which quote includes labour costs) of

$7,320.90 inclusive of GST. Mr Brammall says that he constructed the shed himself over a number of days in December 2010. Based on his evidence and the exhibits he has produced, I find as a matter of fact that the total construction costs to Mr Brammall were approximately $5,000, to which can be added another $2,000, the cost of the power cable from the main house to the shed.

[17] As to the cost of the cannabis growing equipment, Mr Brammall again estimates that this equipment would have cost approximately $5,000 rather than the

$10,000 estimated by the police. As examples of the costs he incurred, Mr Brammall also produced as an exhibit printouts from various web sites which show the cost of a 600 watt medium shade lamp as $245 and a 250 millimetre spectrum centrifugal

222 litre fan as $300. Further printouts were also provided in respect of other equipment. Because of the availability to Mr Brammall as a builder of various pieces of equipment together with the exhibits produced, I also find as a matter of fact that the cost of the cannabis growing equipment to Mr Brammall was approximately $5,000.

[18] As to the purpose for which the shed was built, Mr Brammall was adamant that it was originally constructed as a sleep out for his teenage son and his friends. I am sceptical of his evidence on this point but in the end do not believe this issue to be crucial. Whatever Mr Brammall’s original intention was, it was soon overtaken by the cannabis growing operation. There was no evidence of anyone sleeping in the shed, which appeared to be completely taken up by the operation. There was another sleep out on the property nearer to the house in which the appellant’s son and his friends were sleeping at the time the police executed the search warrant.

[19] However, I do not believe that Mr Brammall set out to grow cannabis principally for the purpose of sale to others. Mr Brammall was, and continues to be, a successful builder and a keen pig hunter and angler. I accept his evidence that because of a marital breakdown and the consequential financial pressures, he became a heavy user of cannabis, smoking up to one ounce per week. He says that a friend gave him two cannabis plants in January 2010, shortly after he had constructed the shed. I accept that he initially commenced the growing operation to feed his own addiction.

[20] Mr Brammall admitted to police that he sold ounces of cannabis for $200 to friends and acquaintances from time to time to defray his expenses but at the time of the execution of the search warrant by the police, there was no indicia found of substantial sales of cannabis. In particular, there were no large sums of cash found on the property, no tick lists, no empty deal bags or ounce bags. Although one set of scales was discovered and photographed, Detective Senior Sergeant Johnston said it

was of a variety that was not commonly used for weighing cannabis.1 The police

also do not advance their case for cannabis sales on the basis of text messages or intercepted communications.

[21] In his lengthy affidavit, Mr Brammall outlined the history of his growing operation and, in particular, the real problems he encountered with cloning plants until approximately two to three months before the execution of the search warrant by the police. In about September or October 2010 he changed his cloning technique

on advice and was then able to increase substantially his success rate. He says that the police executed the search warrant at the peak of his growing operation when he could do nothing more to increase the yield from the operation. He says he was contemplating cutting back on the size of the operation to ensure that it was more consistent with his needs and pointed to cannabis plant material which he had cut from growing plants in the shed and discarded just outside the door of the shed only days before the execution of the search warrant. When I specifically asked Detective Senior Sergeant Johnston about whether he was able to dispute any aspect of Mr Brammall’s account of the history of his growing operation, he was unable to do

so except to query the reason for Mr Brammall’s poor success rate of his clones.2

The history as recounted by Mr Brammall was that he was able to harvest approximately 55 mature plants from August to December 2010.

[22] The last two disputed facts relate to the yield and value of the cannabis plants.

[23] Mr Brammall said he derived about an ounce of cannabis head from each of the 55 plants he harvested from August to December 2010. However, the 9 plants which the police found hanging in the shed yielded on average almost twice that amount – 54.5 grams or 1.92 ounces. This is consistent with the range of 1 to 3 ounces which Mr Fowlie, the expert retained by Mr Brammall, said was typical of cannabis grown indoors. Mr Brammall also said he was a heavy user of cannabis, consuming about an ounce a week. With these perimeters, it is possible to estimate in a broad way the possible income to Mr Brammall from the cannabis growing operation prior to the execution of the search warrant by the police.

[24] Of the 55 plants harvested from August to December 2010, 9 were found hanging in the shed. The equivalent of another 6 plants (328 grams) were found in a box on a lampshade. If Mr Brammall smoked an ounce a week in the 20 weeks between August and December 2010, he would have consumed the equivalent of another 10 plants. This takes the number of plants which would have been available

for sale to others down to 30. This amounts to 1.635 kilograms or 57.67 ounces with a retail value of $17,300.

[25] It is important to note however that this would have been the maximum possible income to Mr Brammall. Mr Brammall said he derived only about an ounce of cannabis head from each plant and sold ounces to friends and acquaintances for

$200 rather than the accepted retail value of $300. When spoken to by the police

Mr Brammall admitted making a couple of “hundy” a week. This would amount to

$4,000 in the 20 week period. This would have been the minimum income to

Mr Brammall.

[26] I therefore find as a matter of fact that Mr Brammall earned in the range of

$4,000 to $17,300 through sales to others of cannabis grown in the shed he constructed, although the actual figure is probably in the lower half of that range.

[27] As to the value of the 328 grams of dried and trimmed cannabis bud found in the shed, the police say that if sold as ounces this box of cannabis head material would have a street value of approximately $3,500. Mr Fowlie agrees with the police estimate of the retail value as being $300 per ounce. However, Mr Fowlie states that, given that Mr Brammall was growing the cannabis, it is more likely that he would have received a wholesale price of $250 per ounce. If the 328 grams of cannabis found in the box in the shed was sold at $250 an ounce, then it would be worth $2,900 rather than $3,500 estimated by the police. In fact, Mr Brammall said he only ever sold cannabis to friends and acquaintances and did not care too much for the prevailing retail rate. He therefore charged his friends and acquaintances

$200 an ounce.

[28] However, given the fact that Mr Fowlie agrees with the police estimate of

$300 per ounce retail value as a reasonable estimate, I find as a matter of fact that the

328 grams of cannabis found in the shed had a retail value of approximately $3,500, although if sold by Mr Brammall to friends and acquaintances he may have received only $2,300 for it.

[29] As to the value of the 9 plants found by the police hanging in the shed, when dried they yielded, on average, 54.5 grams of cannabis head per plant. This was almost exactly in the midrange of yields which Mr Fowlie said were usually achieved in indoor cannabis growing operations. Given the fact that Mr Fowlie also agrees with the police estimate of $300 per ounce retail value as a reasonable estimate, I find as a matter of fact that cannabis heads harvested from the 9 plants found hanging up in the shed would have a retail value of $5,200, although if Mr Brammall had sold it to friends and acquaintances at $200 per ounce he may have received only $3,460 for them.

[30] Using the same calculation for the retail value of the 55 mature plants found by the police in the flowering room, I find as a matter of fact that if the 55 plants each yielded the same amount of cannabis head as did the 9 plants found hanging in the shed, then the cannabis head harvested from the 55 mature plants would have had a retail value of $31,720. Again, if Mr Brammall had sold it to friends and acquaintances at $200 per ounce he may have received only $21,150 for them.

[31] The major issue between the parties is the potential annual value of the cannabis yield from the cannabis growing operation conducted by Mr Brammall. Mr Fowlie says that Detective Senior Sergeant Johnston has overstated the number of growing cycles it was possible to complete within a one year period. While Detective Senior Sergeant Johnston asserted that 8 cycles per year would be feasible, in Mr Fowlie’s opinion only 6.5 cycles per annum would be possible. In cross- examination, however, Detective Senior Sergeant Johnston accepted that there was a

range between 6.5 and 8.3 Because the police accept there is a range, I am of the

view that for sentencing purposes the lower figure of 6.5 should be the figure upon which the yield calculations are based.

[32] The police have calculated the maximum possible income in a year from the cannabis growing operation as $252,000. If the maximum number of possible growing cycles is 6.5 per annum rather than 8, as I believe it is, this lowers the police

_{estimate of the maximum possible income to $204,750. Even this figure takes no}

3 Notes of evidence p 82 lines 11-16.

account of the amount of cannabis which would be consumed by Mr Brammall over the course of the year. It also assumes that all the cannabis grown would be sold at a retail value of $300 rather than $200. If allowance is made for the amount of cannabis that Mr Brammall was consuming and the lower sale price he was achieving, the maximum possible income available over a year comes down to

$127,460. Even this figure assumes that the operation would be able to continue without fault or disaster over the course of a year. As such, it is somewhat artificial and can be contrasted with the maximum possible income to Mr Brammall over the previous year of $17,300.

[33] The Court of Appeal in R v Terewi4 sets out 3 categories of cannabis cultivation offending:

Category 1: ... a small number of cannabis plants for personal use by the offender without any sale to another party occurring or being intended. Offending in this category is almost invariably dealt with by a fine or other non-custodial sentence. ...

Category 2: ... small-scale cultivation of cannabis plants for a commercial purpose, ie with the object of deriving profit. The starting point for sentencing is generally between two and four years but where sales are infrequent and of very limited extent a lower starting point might be justified.

Category 3: ... [T]he most serious class for such offending. It involves large-scale commercial growing, usually with a considerable degree of sophistication and organisation. The starting point will generally be four years or more.

[34] In the R v Terewi the Court went on to say:5

As the Court remarked in Dutch at p 308, “the border-line between each class may in specific cases be indistinct and sometimes incapable of exact demarcation.” We have avoided specifying numbers of plants for each category as was done in Dutch because we consider the numbers given there

... although relevant are no longer themselves an adequate guide where intensive cultivation methods are being employed with a view to enhancing

the yield of usable cannabis – either by increasing the number of crops

beyond what would occur naturally or by producing plants with higher narcotic levels. For example, by means of indoor growing systems the growth and harvesting of plants can be speeded up, reducing the cycle from four to six months to 40 to 45 days. ...

4 _{R v Terewi [1999] 3 NZLR 62 at [4].}

5 At [5].

It will helpful to sentencing Judges if prosecutors bring evidence of the likely amounts of annual gross revenues, or turnover, obtained by the offender from a cannabis growing operation or which the offender must have anticipated deriving from the activity. That will reflect crop cycles and yields and will be a better measure of the size of an operation than simple reference to the number of plants which have been found. The sentence should also take into account the period over which the offending has continued.

[35] I invite counsel’s submissions as to the category into which Mr Brammall’s offending falls. Although there was some scale to Mr Brammall’s cannabis growing operation, it was not primarily, in my view, intended for commercial purposes, i.e. with the object of deriving profits. The usual indicia of large scale sales are not present. Although the police have estimated a potential annual income from the cannabis operation of $252,000, I question whether this is the likely amount of annual gross revenues either “obtained” or “anticipated” by Mr Brammall, to use the wording in Terewi. The police estimate is made by extrapolating what the police found without regard to the build up of the operation over the previous year or Mr Brammall’s primary intention, which was to grow a significant amount of cannabis for his own purposes to feed his own addiction and to share with friends and acquaintances. In that sense, it is somewhat artificial to look at a potential annual income when Mr Brammall’s primary motivation was not commercial.

[36] Mr Brammall took the police to his shed in the bush. He has cooperated with the police. He described the history of the operation to the police. He admitted sales to friends and acquaintances at a discounted price. There were no indicia of large scale dealing – in fact there was no indicia of dealing at all. The police are relying solely on Mr Brammall’s admissions of sales in that regard. Although one would naturally presume that a cannabis growing operation of this scale would be primarily intended for commercial purposes, I find in the unique circumstances of this case, that Mr Brammall’s primary motivation was to secure sufficient supply of cannabis for his own heavy consumption and to share with friends and acquaintances.

.....................................

Woolford J