Stuart v Police [2016] NZHC 2988 (13 December 2016)

Last Updated: 12 January 2017

IN THE HIGH COURT OF NEW ZEALAND BLENHEIM REGISTRY

CRI-2016-406-9 [2016] NZHC 2988

BETWEEN	DAVID GLENN STUART Appellant
AND	NEW ZEALAND POLICE Respondent

CRI-2016-406-10

BETWEEN ANDREW DAVID STUART Appellant

AND NEW ZEALAND POLICE Respondent

Hearing:	6 December 2016 (Heard at Wellington)
Counsel:	R M Gould for D G Stuart R A Harrison for A D Stuart (by AVL) F G Biggs for respondent
Judgment:	13 December 2016

_{RESERVED JUDGMENT OF DOBSON J}

[1] This judgment deals with the appeals by two brothers against the sentences imposed on each of them of 27 months’ imprisonment on convictions for being parties to one charge of possessing cannabis for sale.

Circumstances of the offending

[2] On 17 April 2015, the principal in this offending, Mr Gane, boarded his yacht in Picton to sail in the Marlborough Sounds for the purpose of harvesting crops of

_{cannabis. On 18 April 2015, he was joined by the appellants, David and Andrew}

STUART v POLICE [2016] NZHC 2988 [13 December 2016]

Stuart. That night they harvested plots of cannabis using the yacht and a smaller vessel, storing the cannabis on board. The Police searched the yacht on 24 April

2015, at which time only David Stuart was on board, and seized some

11.58 kilograms of good quality cannabis. The Police estimated its worth at between

$94,000 and $134,000.

[3] The cannabis plots had been planted in 2014 by Mr Gane, assisted by others, but not by David and Andrew Stuart. This operation comprised the Marlborough Sounds branch of a relatively sophisticated and large-scale commercial cannabis growing operation organised by Mr Gane, who had a number of previous convictions for offending of this type.

The sentencing process

[4] On 5 July 2016, Judge Ruth responded to a request from all three of the defendants for a sentence indication.¹ Although other charges had been laid against David and Andrew Stuart, the indication was given on the basis that they would be convicted of a single charge of being a party to possession of cannabis for sale.

[5] The Judge noted that he was obliged to provide the indication on the summary of facts as provided to him, although he observed that it had “... had some cutting and pasting, and so I imagine it has already been the subject of some discussion”.²

[6] The Judge’s analysis of the potential sentences began with the position of the principal, Mr Gane. The Judge isolated the Marlborough offending from other charges Mr Gane was facing in relation to activities in Christchurch. The salient features of Mr Gane’s relevant offending were the extent of cannabis involved (some

26.9 pounds), the relative sophistication of the scheme for growing, harvesting and processing the cannabis, and the extent of Mr Gane’s previous convictions of a similar type. His offending was treated as being within category 2 of R v Terewi,

_{which provides for terms of imprisonment of between two and four years.}³

¹ _{R v Gane HC Blenheim CRI-2015-006-409, 5 July 2016.}

² _{At [4].}

³ R v Terewi [1999] NZCA 92; [1999] 3 NZLR 62 (CA).

[7] Before uplifts for aggravating factors, the Judge’s indication was that a starting point for Mr Gane would be three years and nine months’ imprisonment. For Mr Gane, he indicated uplifts would apply for the balance of the offending in Christchurch, and for the seriousness and recent occurrence of previous convictions for similar offending. Thereafter, discounts would apply – first for the prospect of instrument forfeiture, and secondly for mitigating factors personal to Mr Gane.

[8] The Judge ranked the Stuarts’ involvement as parties equally as between them, and as involving a reduction of 12 months from the 45 month starting point for Mr Gane as principal offender. That starting point of 33 months was then subject to the same 18 per cent deduction as was applied to Mr Gane for guilty pleas, reducing the sentences for the Stuart brothers to 27 months’ imprisonment. The Judge concluded the sentence indication with the following remarks as to the Stuarts:

[35] That, as it happens, is outside the demarcation for home detention but I would, as a matter of caution, again if the sentence indication is accepted seek, as well as the usual pre-sentence report, appendices on the basis that there may be other submissions that can be made on sentencing that might conceivably bring this matter within that two years demarcation. There is nothing in the backgrounds of those men that would dissuade me, subject to appropriate reports and subject to the ability to get to two years as a final sentence, from granting home detention on the information currently known.

...

[37] ... and for both of the Stuart brothers a final sentence for present purposes of 27 months subject to the matter that I have raised about seeking information relevant to electronically monitored sentences. That would, of course, have to be on a no promises basis.

[9] Some months later, on 26 October 2016, all three of the defendants were sentenced by Judge Ruth.⁴ In dealing with Andrew Stuart, the Judge acknowledged that the recommendation in a pre-sentence report included the possibility of home detention, but that the sentence indication which had been accepted by him would have to come down by three months, which the Judge considered to be a substantial reduction. Similar considerations applied for David Stuart.

[10] The Judge observed that each of the Stuarts had personal difficulties which would “make the prison environment less favourable to you than with other persons”.⁵ However, the material provided to the Judge did not lead him to the view that the personal difficulties would make imprisonment impossible. Ultimately the Judge imposed sentences of 27 months’ imprisonment in each case, consistently with the sentence indications.

Grounds of appeal

[11] There was understandably a substantial measure of overlap in the grounds of appeal against sentence advanced respectively by Mr Harrison for Andrew Stuart and Ms Gould for David Stuart. I will identify each ground and deal with its merit in support of one or both appeals.

[12] First, both appellants argued that the extent of their involvement was cast in misleading terms in the summary of facts, in respects relied on by the Judge to rank their involvement as more serious than was justified. The summary of facts included the statements:

In late 2014, [Mr Gane] and his associates planted their cannabis out in the

Marlborough Sounds.

Since then, they have made regular trips into the Sounds, using [Mr Gane’s] yacht ‘Solaris’, and its tender, and a Kiwi-Kraft runabout boat to tend, water and cultivate the cannabis.

[13] That passage in the summary of facts appeared after a blank portion of a page that may have identified other associates of Mr Gane, who were referred to as such in the passage quoted above.

[14] In any event, the Judge adopted that part of the narrative from the summary of facts in his sentencing indication, in terms that suggest he may have treated the Stuarts as the associates referred to. That was clearly not the case, and the Crown’s stance on sentencing explicitly acknowledged that the Stuarts had no involvement in the operation until the April 2015 harvest.

[15] There is no other statement in either the sentencing indication or the sentencing notes to suggest that the Judge treated either of the Stuarts as involved other than during the period of the harvest in April 2015. There are no other grounds for inferring that the Judge attributed involvement to the Stuarts, other than in the harvesting and processing stage of the enterprise.

[16] The second criticism is that the Judge erred in ranking the relative culpability between Mr Gane as principal, and the Stuart brothers as parties. Counsel relied on analogies with other cases in which the sentencing analysis involved ranking relative culpability between organising or major participants, and assistants who were involved to a lesser extent. Mr Harrison submitted that relativity required the starting point for Andrew Stuart to be between a third and a half of the starting point for Mr Gane. Ms Gould adopted that submission in respect of David Stuart.

[17] As Mr Biggs submitted in defending the extent of disparity in the starting points, the test on this point is whether an independent observer would consider that something had gone wrong in the sentencing process because of a clear lack of relativity.⁶ He submitted that the Stuarts were close to the offending, given that they were charged as parties, and that they were “hands on” participants in harvesting and processing the cannabis.

[18] Mr Harrison relied in particular on Larking v R, in which the appellant was one of some 20 participants prosecuted for a cannabis growing operation on the West Coast.⁷ By the time of his appeal to the Court of Appeal, nine co-offenders had been sentenced but three who had leading roles in the offending had not yet been sentenced. Mr Harrison submitted that the approach by the Court of Appeal involved a significantly greater gap between principals and those involved in tertiary roles, as Mr Larking was. The sentence imposed in the District Court of three years and two months’ imprisonment was quashed and instead Mr Larking was sentenced

_{to a term of seven months’ home detention.}⁸

⁶ _{R v Lawson [1982] NZCA 67; [1982] 2 NZLR 219 (CA) at 223.}

⁷ _{Larking v R [2011] NZCA 401.}

⁸ It was relevant that three and a half months’ imprisonment had been served at the time of the

Court of Appeal decision.

[19] In Larking, there is no specific acknowledgement by the Court of Appeal of the ranking to be adopted as between major and minor players in such commercial cannabis operations. The relative seriousness of the appellant’s involvement was ranked by virtue of the scale of the growing operation, and the part he played in facilitating the production of saleable cannabis. The decision is not as useful as it might have been for Mr Harrison’s point about the appropriate proportionate difference between main participants and lesser ones because the ringleaders in Larking had not yet been sentenced.

[20] The appellate approach was to recognise that those responsible for masterminding the West Coast operation might properly be sentenced on a category 3 (from Terewi) basis. That was qualified in relation to the others:⁹

... But the sentences of those who were used to assist in various aspects of the operations must be (and, in the cases we have referred to, have been) adjusted to appropriately reflect the nature of the offender’s involvement.

[21] The Court of Appeal categorised Mr Larking’s offending as being low to mid- level category 2 in Terewi. On that basis, an appropriate starting point was two years and six months’ imprisonment (compared with a starting point adopted in the District Court of four year’ imprisonment).¹⁰

[22] The most that might be said is that the differential between main participants in category 3 offending, and lesser participants in category 2 offending, would be larger than the differential of some 27 per cent between Mr Gane and the Stuarts here.

[23] I do not accept the Crown argument that Mr Larking was further removed on the facts of that case from the principal participants, than the differences between Mr Gane and the Stuarts here. The Stuarts had no involvement in planting the cannabis, or in providing the vessel to facilitate harvesting and processing. There is also no suggestion that they were involved in any selling of the harvested product. I accept that the Court of Appeal’s approach in Larking does suggest a larger disparity between principals and parties than was used by the sentencing Judge here.

[24] Mr Harrison also relied on the older Court of Appeal authority in R v Sheahan.¹¹ That was a Solicitor-General’s appeal against sentences of six months’ imprisonment imposed after the trial of two participants in a cannabis growing operation who were accepted to have been hired help under the direction of others controlling and directing the operation. The Crown criticism of the sentencing approach included that the sentencing Judge had paid too much regard to the lesser

role adopted by the appellants in the undertaking.

[25] The Court of Appeal treated the sentence as a lenient one, but implicitly acknowledged the appropriateness of demarcating levels of culpability depending on the part played by various participants in organised cannabis growing operations. The finely balanced decision not to interfere with the sentence was subject to the caveat that the outcome was not to be treated as an indication of an appropriate level in other cases where offenders were employed to assist in the cultivation of cannabis.

[26] I am not persuaded that the appellate reasoning on the facts in Sheahan provides any direct support for the Stuart brothers contending that the Judge erred in the extent of difference in culpability between the principal offender and parties.

[27] The Crown supported the relativity between Mr Gane and the Stuarts by analogy with the Court of Appeal decision in R v Braun.¹² In that case, the sentencing analysis for Mr Braun started at half the five year starting point adopted for the principal participant in a cannabis growing operation. The appeal was brought on the basis that two years, rather than two and a half years (being

40 per cent of the starting point taken for the primary offender) ought to have applied. Mr Braun had facilitated an indoor cannabis cultivation operation by approximately monthly renewals of canisters supplying carbon dioxide to the growing operation. The evidence established that he did that on eight occasions. After trial, the sentencing judge rejected a claim that Mr Braun was unaware of the scale of the cultivation he was assisting by his input.

[28] In upholding the 50 per cent relativity, the Court of Appeal had regard to Mr Braun’s previous conviction for similar cultivation as a serious aggravating circumstance. The very different nature of Mr Braun’s involvement in that operation, and the influence of his prior conviction, makes it difficult to apply it as a close analogy in reconsidering the relativity between Mr Gane and the Stuarts in this case. It is difficult to apply it, as Mr Biggs suggested, to justify the lesser discount of some 27 per cent that was applied in this case by Judge Ruth.

[29] What can be taken from the approach in those appellate decisions is that assessing relativity may not be the most reliable basis from which to work in defining separate starting points for those involved in such operations to greater and lesser degrees. Instead, the level of culpability of each participant can be ranked in the individual circumstances of that defendant, using the relativity with others as a check on the appropriateness of the starting point arrived at.

[30] Undertaking that exercise here does raise the prospect that the starting point adopted for the Stuarts was somewhat higher than was warranted.

[31] Mr Harrison advanced a further criticism of the manner in which the Crown and the Judge dealt with his submission about Andrew Stuart’s motivation for involvement. Mr Harrison was instructed to advise the Court that his client had been involved in return for being given a modest amount of cannabis. There were medical reports tendered to the Court confirming that Andrew Stuart had had a serious motor accident many years previously, and that he lived with chronic pain. The sentencing Judge was advised that he had not been involved for monetary gain, but rather to obtain a supply of cannabis for his own use which he consumed for pain relief purposes.

[32] Mr Harrison submitted that the Crown had urged the sentencing Judge to be sceptical of such motivation, and he was concerned at the implication that indeed the Judge may have not given Andrew Stuart credit for his involvement being for personal, rather than monetary, purposes. His argument was that, in the absence of evidence to the contrary, the Judge ought to have accepted that his client had no

financial interest in the enterprise, and that was a factor which ought to have counted in reducing the level of his involvement.

[33] However, there is nothing in the terms of either the sentencing indication or the Judge’s notes on sentencing that suggest the Judge rejected the claimed motive relayed in defence counsel’s submissions. The sentencing indication included the following:¹³

... it seems pretty apparent that Mr Andrew Stuart has some real health problems, and that indeed this was the motivation, if there was one, for being involved in this matter because as I understand it, he was effectively taking cannabis as his reward so to speak, and self-medicating.

[34] The notes on sentencing do not touch on motivation for Andrew Stuart’s

involvement at all.

[35] Counsel for both appellants criticised the Judge for inadequate discount for their guilty pleas, and a refusal to recognise a discrete discount for remorse on their parts. Mr Harrison argued that the case against Andrew Stuart was not strong when he was some five kilometres away from the vessel at the time of their arrests. He protested that the Stuart brothers ought not to have been treated as a “job lot”.

[36] For David Stuart, Ms Gould submitted that neither brother should be ranked as a more or less important participant in the criminal activity.

[37] I find no error in the Judge’s approach on this aspect of his sentencing. There had been numerous delays before guilty pleas were entered. Although Andrew Stuart took no part in pre-trial applications, they were brought on sufficiently broad terms to apply to the whole case so that he would have been a beneficiary of any success with them. The claimed evidence of remorse is not compelling.

[38] Both appellants complained that they were misled by the terms of the sentencing indication. It held out the prospect of reduction in the indicated sentence sufficiently for them to qualify for home detention, if sufficient favourable personal factors appeared on further information provided to the Judge for sentencing. Both

now argue that they considered the type of mitigating personal circumstances they could advance would enable the Judge to make a sufficient reduction. In contrast, however, the Judge then observed on sentencing:¹⁴

[12] Of course, each of you, has to some extent or another, reasonably compelling personal circumstances, but the reality is that the law is settled in this area that personal circumstances carry but little weight in areas of drug dealing which this is.

[39] This concern is to be weighed in light of the caution expressed by the Judge in providing the sentencing indication, as quoted at [8] above.

[40] I am not persuaded that there was anything unfair or improper in the way in which the Judge acknowledged a prospect of the sentences being reduced sufficiently for the appellants to qualify for home detention. It was a prospect, no more.

[41] If appellants make out a complaint that they have been induced to enter guilty pleas in reliance on a sentence indication that is materially inconsistent with a sentence subsequently imposed, then the remedy is to offer the appellants an opportunity to vacate the plea and reconsider their prospects of defending the charge or charges. That course is not contemplated in this case. Here, the error, if there is one, is in the Judge’s refusal to grant any discount for personal circumstances.

[42] There is scope for concern that the Judge rejected the prospect of a discount in terms that were more absolute than is justified, merely because the offences involved drug dealing. Certainly, in sentencing serious class A drug offending, there is authority that the interests of deterrence and denunciation leave little room to take personal circumstances into account as mitigating the extent of the appropriate sentence.

[43] The level of involvement in this offending by both the Stuarts may be addressed by an appropriate end sentence that allows some credit for favourable personal circumstances, without diminishing the deterrent signal conveyed. The

Supreme Court has acknowledged, even in the case of offending involving class A

drugs, that exceptions may be justified.¹⁵

[44] In the case of Andrew Stuart, there are medical reports confirming that he suffers chronic pain of a type that would make prison conditions more difficult for him to bear than for healthy prisoners. The Judge did not consider the prospect of shortening the length of sentence on account of the difficulty that would be encountered in serving it, rather than the more absolute proposition of rejecting a

prison sentence on the grounds it would be impossible for him to serve it.¹⁶

[45] David Stuart also suffers the after effects of injuries due to both car and workplace accidents. Counsel advise that he has undergone shoulder reconstruction surgery and was awaiting a knee replacement at the time of the offending. These contributed to his inability to work. His position was supported by personal testimonials as to his kind, caring and honest characteristics.

[46] The Crown rejected these favourable personal considerations for each defendant as not being of the exceptional type that would justify a further discount from the starting point, in the context of convictions for drug-related offences.

Provisional outcome

[47] I consider the differential between the starting point for Mr Gane as the principal offender, and that set for the Stuarts, was insufficient. They were important but not critical participants in the harvesting and processing stage, with no involvement in other aspects. They were involved by the organiser of cannabis cultivation and production of a more sophisticated and extensive scale than they had any involvement in, and their relative culpability requires more than a 26 to

27 per cent differential. I consider that 35 per cent would have appeared to an objective and fully informed observer as the appropriate differential.

[48] From that starting point, a combined discount for the guilty pleas and personal circumstances of 20 per cent is readily justifiable. Without criticising the

¹⁵ _{R v Jarden [2008] NZSC 69, [2008] 3 NZLR 612.}

¹⁶ R v Luce [2007] NZCA 476.

District Court Judge’s approach to a discount for guilty pleas, some modest addition is warranted for recognition of the additional difficulties that would be encountered by the Stuarts in serving a prison sentence.

[49] I accordingly find that an end sentence in each case of no more than

24 months’ imprisonment would have been appropriate.¹⁷ A difference of three months is, in many circumstances, insufficient to justify interfering with the original sentence. However, that is warranted here where it makes the difference between a prison sentence and the Stuarts qualifying for sentences of home detention.

[50] The Provision of Advice to Courts (PAC) from the Department of Corrections in the case of each appellant reported the availability of suitable addresses for each of them to serve sentences of home detention. In each case, the home detention option included proposed special conditions.

[51] I am minded to allow the appeals and substitute terms of home detention. I would be grateful if the availability of the home detention addresses could urgently be confirmed on terms acceptable to the authors of the PAC reports in each case.

[52] Assuming confirmation of appropriate addresses and the ability to make logistical arrangements within the next week, the appellants will have served between six and eight weeks of the prison sentences imposed. I intend quashing the prison sentences and instead imposing sentences of 10 months’ home detention in each case. Those sentences will be subject to the release conditions proposed by the report writers. The advice I have sought should be referred to me as a matter of

_{urgency to enable orders to be made promptly.}

Solicitors:

Crown Solicitor, Blenheim

Dobson J

¹⁷ Gane starting point of 45 months x 0.65 = 29.25 x 0.8 = 23.4 months.